Bazemore v. United States

138 F.3d 947, 1998 U.S. App. LEXIS 7160, 1998 WL 166497
Court of Appeals for the Eleventh Circuit·Decided April 10, 1998·No. 96-8382·Published·Cited by 22 cases

Opinion

RONEY, Senior Circuit Judge:

Robbie Dale Bazemore appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his conviction for using or carrying a firearm in connection with a drug trafficking crime. He argues that the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), requires this court to set aside his conviction. Bazemore believes that Bailey stands for the proposition that the conduct he pled guilty to, participating in a drug trafficking crime in which a co-defendant carried a weapon, did not violate 18 U.S.C. § 924(e). We agree with the district court that Bazemore is not entitled to the relief he seeks because Bailey defendants may still be convicted under section 924(e) if they aided and abetted a co-defendant who carried a gun.

On October 22, 1991, appellant Robbie Dale Bazemore pleaded guilty to possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a)(1)' (1994), and to using or carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (1994). Before accepting the guilty plea, the court advised the defendant of his rights and properly followed the plea procedures required by Fed.R.Crim.P. 11. At his Rule 11 hearing, Bazemore admitted that he and his co-defendants William Aber-crombie and Louis Spivey had entered into a conspiracy to purchase 50 pounds of marijuana from an undercover agent of the Georgia Bureau of Investigation. On May 14, 1991, Bazemore and Spivey drove separate vehicles to a local mall, where they had arranged to buy the marijuana. Abercrombie, who carried a 9 mm pistol in the waistband of his pants, traveled to the mall as a passenger in Bazemore’s van. Bazemore knew that his passenger was carrying a weapon. When they arrived at the mall, Spivey met the undercover agent and showed him some money. Then Bazemore went over to the undercover vehicle to inspect the marijuana while Abercrombie observed him from the van. As Bazemore was bringing the marijuana back to his van, all three conspirators were arrested by law enforcement officers.

As a prisoner bringing a post-conviction collateral attack on a guilty plea, Bazemore must show that under the Supreme Court’s decision in Bailey, the conduct to which he pled guilty does not constitute a crime. See United States v. Brown, 117 F.3d 471, 476-77 (11th Cir.1997); United States v. Barnhardt, 93 F.3d 706, 709 (10th Cir.1996).

Bazemore contends that the Supreme Court’s recent decision in Bailey v. United States requires reversal of his conviction on the gun charge because he did not actively employ a weapon. In Bailey, the Supreme Court examined the meaning of the word “use” in 18 U.S.C. § 924(c), which imposes a mandatory five-year consecutive sentence on anyone who “uses or carries a firearm” in connection with a drug trafficking crime or a crime of violence. Prior to Bailey, several circuits had held that proximity and ready access to a weapon could constitute “use” in violation of section 924(c). See Bailey, 516 U.S. at 141-43, 116 S.Ct. at 505. The Court reasoned that this eviscerated the language of the statute, which proscribed either “using” or “carrying” but not possession. Such a broad definition of “use” would leave no room left for “carry.” The Court held that a conviction for “use” under section 924(c) requires “active employment of the firearm” as opposed to mere possession. Id. at 143-45, 116 S.Ct. at 506. In confining the scope of *949 the “using” prong of the statute, however, the Court made clear that its decision was intended to give new life to- the “carry” prong, and the Court remanded the cases under, its review for consideration of whether the “carry” prong had been met. Id. at 149-51, 116 S.Ct. at 509. Indeed, the Court specifically stated that “[w]hile it is undeniable that the active-employment reading of ‘use’ restricts the scope of § 924(c)(1), the Government often has other means available to charge offenders who mix guns and drugs.” Id. at 150, 116 S.Ct. at 509. One of these “other means” is aider and abettor liability.

The district court found that Baze-more had aided and abetted his co-defendant in “carrying” the weapon. 18 U.S.C. § 2(a) states that “whoever ... aids, abets, counsels, commands, induces or procures [a crime’s] commission, is punishable as a principal.” Because Bazemore assisted Aber-crombie in committing the offense, Bazemore is liable for the crime and his plea was properly accepted.

Although the Bailey decision narrowed the scope of conduct qualifying for “use” of a firearm under section 924(e), nothing in the opinion suggests that it was intended to provide criminals with immunity from well-established doctrines of criminal law. Aider and abettor liability for section 924(c) offenses was well established in the pre-Bailey jurisprudence of this Circuit, see United States v. Chandler, 996 F.2d 1073, 1105 (11th Cir.1993); United States v. Hamblin, 911 F.2d 551, 557 (11th Cir.1990); United States v. James, 528 F.2d 999, 1015 (5th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 383, 50 L.Ed.2d 326 (1976), and has also been applied in at least one post-Bailey case, see United States v. DePace, 120 F.3d 233, 237-38 (11th Cir.1997). Indeed, every court which has confronted the issue in the wake of Bailey has held that aider and abettor liability continues to attach to individuals who assist codefendants in using or carrying a weapon in connection with drug trafficking. See United States v. Wilson, 135 F.3d 291, (4th Cir.1998); Barrett v. United States, 120 F.3d 900, 901 (8th Cir.1997); United States v. Malpeso,

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Bazemore v. United States, 138 F.3d 947, 1998 U.S. App. LEXIS 7160, 1998 WL 166497 (11th Cir. 1998).

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