IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50849
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALAN LEWIS ZEDLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(A-95-CR-104-ALL)
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July 19, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alan Zedler appeals his conviction of, and sentence for, using
or carrying a firearm in relation to a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c)(1). We vacate and remand.
I.
Zedler was charged in a seven-count superseding indictment
with drug-trafficking and firearm offenses. Pursuant to a plea
*
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should not be published and is not precedent except under the limited circumstances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.
agreement, he pleaded guilty of conspiracy to manufacture mari-
huana, 21 U.S.C. § 846 (Count One), and using and carrying a
firearm during a drug-trafficking offense, 18 U.S.C. § 924(c)(1)
(Count Five). He was sentenced to serve 120 months (the statutory
minimum) for the conspiracy and to serve five years consecutively
for the firearm offense; he also received a five-year term of
supervised release. As part of the agreement, he agreed to forfeit
the real estate on which he and his wife had been growing mari-
huana, as well as firearms, vehicles, cash, and drug paraphernalia
found on the property.
At rearraignment, the prosecutor stated that the .45 Detonics
handgun that was the basis for Count Five was found “under a pillow
on . . . Zedler’s side of the bed in which he slept.” Eleven other
firearms “were also located at the residence.” There was no other
evidence indicating that Zedler had used or carried a firearm
relative to his drug trafficking.
II.
Zedler contends that we should reverse his conviction of the
§ 924(c)(1) violation and allow him to replead as to Count Five on
remand. He asserts that there is no evidence to sustain a
conviction of either using or carrying a firearm, as charged in
that count. Thus, he argues, there was not an adequate factual
basis for his plea on that count. Zedler also argues that FED. R.
CRIM. P. 11 was not complied with adequately.
The government agrees, observing that in Bailey v. United
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States, 116 S. Ct. 501, 509 (1995), the Court held “that a
conviction [under § 924(c)(1)] for use of a firearm requires a
showing that the defendant actively employed the firearm during and
in relation to the predicate crime.” Accord United States v.
Andrade, 83 F.3d 729, 730-32 (5th Cir. 1996) (applying Bailey,
which was decided while Andrade’s and Zedler’s appeals were
pending). The factual basis also was insufficient to sustain a
conviction for “carrying” under § 924(c)(1), as there is no record
evidence that Zedler transported a firearm. See United States v.
Rivas, 85 F.3d 193 (5th Cir. 1996); United States v. Fike, 82 F.3d
1315, 1328 (5th Cir. 1996). Therefore, Zedler’s § 924(c)(1)
conviction and five-year sentence must be vacated. See Andrade, 83
F.3d at 731-32.
III.
The government requests us to remand so that Zedler can be
resentenced on the conspiracy count, to add two levels to Zedler’s
offense level pursuant to U.S.S.G. § 2D1.1(b)(1) because he
possessed a dangerous weapon during the conspiracy. Zedler has not
taken issue with this request.
In Andrade, the government made a similar request. This court
stated: “Although we agree remand is required, the particular
relief requested by the Government is not properly before us, and
we express no view on the appropriateness of altering the Guideline
range.” 83 F.3d at 730 n.2.
If we were to comply with the government’s request, Zedler’s
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total offense level would be increased from 25 to 27, and his
imprisonment term range for that level, with his criminal history
category I, would be 70 to 87 months. This is considerably less
than the 120 months Zedler received as the mandatory minimum under
21 U.S.C. § 841(b)(1)(A)(vii). Accordingly, we deny the govern-
ment’s request, as granting it would have no effect on the
sentence.
VACATED and REMANDED.
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