UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40578
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEFAN SEAN ANTOINE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(1:96-CV-75)
January 20, 1999
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Stefan Sean Antoine (“Antoine”), a federal prisoner,
was convicted by a jury of using and carrying a firearm during and
in relation to a drug offense in violation of 28 U.S.C. § 924(c).
Antoine appealed the conviction and we affirmed. United States v.
Antoine, 68 F.3d 466 (5th Cir. 1995). Antoine now appeals from the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
district court’s denial of his pro se motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255. We affirm the district
court.
I. FACTS
On January 30, 1992, Antoine drove with Rodrick D. Kirklin
(“Kirklin”) from Lake Charles, Louisiana, to Houston, Texas, to
secure a quantity of cocaine that was to be resold in Lake Charles.
The two men, who were traveling in Kirklin’s car, were carrying
pistols. Kirklin was armed with a .22 caliber derringer while
Antoine carried a .45 caliber handgun. On arriving in Houston,
Antoine went to his mother’s apartment where he was given a plastic
diaper bag filled with cocaine. Antoine then placed the diaper bag
behind the passenger seat of Kirklin’s car; the firearms were kept
in the trunk. That night, Antoine and Kirklin began their trip
back to Lake Charles. Kirklin was driving the car while Antoine
occupied the passenger seat.
While traveling east on I-10, Antoine and Kirklin were stopped
and detained by two officers of the Jefferson County Sheriff’s
Department for routine traffic violations. A subsequent pat-down
search of Antoine revealed an ammunition clip to a .45 caliber
handgun in Antoine’s coat pocket. That discovery ultimately led
to the trunk of the car, where one of the officers recovered
Antoine’s .45 caliber handgun, which he admitted was his, and
Kirklin’s .22 caliber derringer. On the floorboard behind the
passenger seat the police recovered the plastic diaper bag that
2
contained the cocaine.
Antoine was subsequently indicted on one count of possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1), and one count of using and carrying a firearm during
and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c). After a two-day trial, in which Kirklin testified
on behalf of the government, a jury found Antoine guilty of the
firearms offense, but was unable to reach a unanimous verdict with
regard to the substantive drug charge. Antoine was then sentenced
to 60 months imprisonment with a three year term of supervised
release. Antoine appealed. We affirmed his conviction. United
States v. Antoine, 68 F.3d 466 (5th Cir. 1995).
On February 2, 1996, Antoine filed a pro se motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255, in which he
challenged his conviction based on the Supreme Court’s
interpretation of "use" in Bailey v. United States, 516 U.S. 137,
143 (1995) (holding that “use” requires evidence "sufficient to
show an active employment of the firearm by the defendant, a use
that makes the firearm an operative factor in relation to the
predicate offense").2 A magistrate judge considered Antoine’s
motion and recommended that it be denied. The district court
accepted the magistrate judge’s recommendation over Antoine’s
objections, and denied the motion. Antoine then filed the instant
2
Because Antoine’s § 2255 motion was filed before the
effective date of the Antiterrorism and Effective Death Penalty Act
of 1996, a certificate of appealability is not required for this
Court to consider his appeal. See United States v. Carter, 117
F.3d 262, 264 (5th Cir. 1997).
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pro se appeal.
II. DISCUSSION
Antoine contends that the district court erroneously charged
the jury with the pre-Bailey meaning of “use.”3 He also asserts
that the evidence presented at trial does not demonstrate that he
“used” the firearm within the meaning of Bailey because there is no
evidence that he actively employed the weapon.4 The government has
3
In its charge to the jury, the district court stated in
pertinent part:
Now Count II of the Indictment accuses the Defendant
of using or carrying a firearm during and in relation to
a drug trafficking crime. Title 18, United States Code,
Section 924(c)(1), makes it a crime for anyone to use or
carry a firearm during and in relation to a drug
trafficking crime . . . .
The Government is not required to prove that the
Defendant actually fired the weapon or brandished it at
someone in order to prove “use,” as is [sic] that term is
used in these instructions. However, you must be
convinced beyond a reasonable doubt that the firearm
played a role in or facilitated the commission of the
drug offense. In other words, you must find that the
firearm could have been used to protect, facilitate, or
have the potential to facilitate drug trafficking.
Further, this elements [sic] does not depend on proof
that the Defendant had actual possession of the firearm
or use [sic] it in any affirmative manner, but it does
require evidence that the firearm was available to
provide protection to the Defendant in connection with
his engagement in drug trafficking, if any.
4
In this appeal, Antoine also contends that his § 924(c)
conviction cannot stand because he was not convicted of the
underlying drug trafficking offense in count one of the indictment.
This argument is without merit. In United States v. Ramos-
Rodriguez, 136 F.3d 465, 467 (5th Cir. 1998), cert. denied, 67
U.S.L.W. (U.S. Nov. 2, 1998) (No. 98-5114), this Court acknowledged
that a conviction under § 924(c) does not require a conviction on
the underlying drug offense. We also held that an acquittal on the
underlying drug offense does not preclude a conviction under §
4
conceded that the district court’s instruction on use was
erroneous. The government alleges, however, that reversal of
Antoine’s conviction is not required because Antoine was charged
with using or carrying a firearm, and there is sufficient evidence
to support his conviction on the carry prong of § 924(c). In an
attempt to circumvent that argument, Antoine contends that under
United States v. Fike, 82 F.3d 1315 (5th Cir. 1996), overruled by
United States v. Brown, ___ F.3d ____, No. 95-31000, 1998 WL 792511
(5th Cir. Nov 16, 1998), this Court is obligated to reverse his
conviction. We disagree.
It is true that in Fike and United States v. Brown, 102 F.3d
1390 (5th Cir. 1996), overruled by United States v. Brown, ___ F.3d
____, No. 95-31000, 1998 WL 792511 (5th Cir. Nov 16, 1998), this
Court established a rule requiring remand for a new trial on the
issue of “carry” whenever a district court instructs the jury under
the pre-Bailey definition of “use.” See United States v. Brown,
___ F.3d ____, ____, No. 95-31000, 1998 WL 792511, at *1 (5th Cir.
Nov 16, 1998) (recognizing that these two cases established a “per
se rule”). But this Court recently revisited those holdings en
banc, and replaced the per se rule of reversal with a form of
harmless error analysis. Brown, ___ F.3d at ____, 1998 WL 792511,
at 2-3. We now ask whether the jury, in finding the defendant
924(c) when there is ample evidence showing that a reasonable jury
could have found the defendant guilty of the predicate offense.
Id. Here, there is ample evidence that Antoine committed the
predicate drug trafficking offense alleged in count one of the
indictment, possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1).
5
guilty of the pre-Bailey definition of “use,” necessarily found
that the defendant carried the firearm, as defined in Muscarello v.
United States, ___ U.S. ____, 118 S. Ct. 1911 (1998) (holding that
phrase “carry” is not limited to the carrying of firearms on the
person, but also applies to a person who knowingly possesses and
conveys a firearm in a vehicle, including in the locked glove
compartment or trunk of a car). Thus, if the jury’s finding of
“use” equates to a finding of carry based on the particular facts
of a case, the erroneous use instruction constitutes harmless
error.
In this case, the jury found Antoine guilty of “use” on
evidence that Antoine and Kirklin transported the firearms in
Kirklin’s car from Lake Charles to Houston, and on the return trip
from Houston to Lake Charles. The jury also heard evidence that
Antoine admitted to owning the .45 caliber handgun, and that the
firearm was available to him in case the drug transaction did not
go as planned. On these facts, the jury’s finding of use
necessarily equates to a finding of carry within the meaning of
Muscarello. As such, the district court’s erroneous use
instruction was harmless error that does not require the reversal
of Antoine’s conviction. We AFFIRM the district court’s denial
of Antoine § 2255 motion.
6