United States v. Jones

United States Court of Appeals,

Eleventh Circuit.

No. 93-8467.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gregory Louis JONES, Defendant-Appellant.

Feb. 6, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CR-35-1), Richard C. Freeman, Judge.

Before BIRCH and CARNES, Circuit Judges, and BLACKBURN*, District
Judge.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

The Supreme Court has vacated our prior judgment in this case,

United States v. Jones, 28 F.3d 1574 (11th Cir.1994), and remanded

the case to us for further consideration in light of Bailey v.

United States, --- U.S. ----, 116 S.Ct. 501, --- L.Ed.2d ----

(1995).

In upholding Jones' conviction for using or carrying a firearm

during and in relation to the commission of a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1), we applied the

pre-Bailey law of this Circuit that the presence of a weapon in a

location near a significant quantity of illegal drugs is sufficient

to submit to the jury the issue of whether the defendant used that

firearm in connection with a drug trafficking crime. Id. at 1577-

79. The Supreme Court has now held that a defendant cannot be

*
Honorable Sharon Lovelace Blackburn, U.S. District Judge
for the Northern District of Alabama, sitting by designation.
convicted under the "use" prong of § 924(c)(1) merely because a

firearm is present at the scene of a drug crime. Instead, if the

firearm is not "carried" there must be an active use, such as

"brandishing, displaying, bartering, striking with, and most

obviously, firing or attempting to fire." Bailey, --- U.S. at ----

, 116 S.Ct. at 508. More specifically, the Court has rejected the

proposition "that a gun placed in a closet is "used,' because its

mere presence emboldens or protects its owner." Id.

In light of Bailey, we modify our prior opinion, insofar as it

concerns the § 924(c)(1) conviction, 28 F.3d at 1577-79, and hold

that the evidence in this case was insufficient to support that

conviction. Our affirmance of the remaining convictions stands.

Accordingly, the "Conclusion" part of our prior opinion, id. at

1582, is modified to read as follows:

All of Jones' convictions are AFFIRMED, except his
conviction for violating 18 U.S.C. § 924(c)(1). That
conviction and sentence are REVERSED. All of Jones' remaining
sentences are AFFIRMED, except for the sentence he received
for possession of the unregistered sawed-off shotgun, which
sentence is VACATED. The case is REMANDED for proceedings
consistent with this opinion.