United States v. Bolling

937 F. Supp. 198, 1996 U.S. Dist. LEXIS 11770, 1996 WL 467207
District Court, W.D. New York·Decided August 9, 1996·No. No. 95-CR-6002L·Published

Opinion

DECISION AND ORDER

LARIMER, Chief Judge.

The defendant in this case, Marcus Bolling, was charged in a two-count indictment with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and with using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). On March 2, 1995, Bolling pleaded guilty to Count 2, the § 924(c) charge. On March 10, 1995, I sentenced Bolling to a sixty-month term of imprisonment. The cocaine charge was dismissed at sentencing in accordance with the plea agreement.

Bolling has now filed a motion, pro se, to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Bolling asserts several grounds for relief, none of which have merit, and only one of which merits much discussion.

DISCUSSION

I. Evidence that Defendant “Used or Carried” Firearm

Bolling contends that his conviction should be dismissed in light of the Supreme Court’s decision in Bailey v. United States, - U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which altered the definition of “using” a firearm in § 924(c)(1) as that term had been previously been construed by the Second Circuit and other circuits. Before addressing the merits of Bolling’s claim in this regard, however, some recitation of the underlying facts are necessary.

During the plea colloquy, the prosecutor, in summarizing the factual basis for the plea, stated that

[t]he evidence would show if this matter proceeded to trial that on September 9, 1993, the Rochester Police Department executed a search warrant based on two informant buys at 78 Reynolds Street. The defendant was found. Therein on his per[199] son was found a .32 caliber pistol. Also on Ms person were found fifty-four “mekel” bags of cocaine. The government’s evidence would show tMs cocaine was intended for distribution to others. The gun was used in furtherance of that distribution program.

Transcript at 9.

The following colloquy then occurred:

THE COURT: Mr. Bolling, any quarrel with what the prosecutor recited happened back on September the 9th, 1993?

THE DEFENDANT: No, sir.

THE COURT: Do you admit that you did have that .32 caliber pistol in your possession as well as those fifty-four nickel bags of cocaine?

THE DEFENDANT: Yes, sir.

Transcript at 9-10.

After some further discussion of other matters, I asked Bolling how he pleaded to the charge in Count 2 that he “did knowingly, willfully and unlawfully use and carry a firearm, that is a handgun, during and in relation to a drug trafficking crime ...,” to wMch he responded, “Guilty.” Transcript at 13.

Bolling now contends that these facts wMch he admitted are insufficient to support his conviction in light of Bailey. In Bailey, the Supreme Court held that to obtain a conviction for use of a firearm under § 924(c)(1), the Government must prove “an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.” —— U.S. at -, 116 S.Ct. at 505. “Use,” the Court said, would include activities such as “brandishing, displaying, bartering, striking with, ... firing or attempting to fire, a firearm,” or referring to a firearm so as to intimidate another person. Id. at -, 116 S.Ct. at 508.

The Bailey Court, however, did not define the meaning of the word “carry” in § 924(c)(1). The Court did, though, suggest that a conviction that was not sustainable under the “using” prong of the statute could nonetheless be upheld under the “carrying” prong. Noting that the Court of Appeals for the District of Columbia Circuit (whose decisions were on appeal in Bailey) had not considered the defendants’ liability under the “carry” prong of the statute, the Court remanded for consideration of that basis for upholding the convictions. Bailey, — U.S. at -, 116 S.Ct. at 509.

Thus, Bailey did not affect earlier case law construing the word “carry” in § 924(c)(1). Moreover, since the courts prior to Bailey had “generally agreed that ‘carrying’ [wa]s to be interpreted narrowly, while ‘use’ [wa]s interpreted more broadly,” United States v. Pineda-Ortuno, 952 F.2d 98, 103 (5th Cir.), cert. denied, 504 U.S. 928, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992), it would seem that the Supreme Court would be less inclined to narrow the generally-accepted interpretation of “carrying” than it was to narrow the definition of “using.”

Regardless of whether the factual basis for Bolling’s plea would be sufficient to show that he used a firearm, then, his conviction is valid if the facts show that he carried a firearm during and in relation to a drug trafficking crime. See, e.g., United States v. Riascos-Suarez, 73 F.3d 616, 623-24 (6th Cir.1996) (although defendant could not be convicted of using firearm under Bailey, trial court correctly accepted plea based on showing that defendant carried firearm), cert. denied, — U.S. -, 117 S.Ct. 136, — L.Ed.2d - (1996); United States v. Turner, No. Crim. 92-600, 1996 WL 311472 *3 (E.D.Pa. June 10, 1996) (denying § 2255 motion by defendant who pleaded guilty, since defendant was carrying firearm concealed in Ms coat); Gaskins v. United States, 925 F.Supp. 396, 399-400 (D.Md.1996) (denying § 2255 motion by defendant who admitted during plea colloquy that firearm was within arm’s reach, wMch constitutes “carrymg” for purposes of § 924(c)); United States v. Deases, 923 F.Supp. 170, 172-73 (D.Kan.1996) (same); Crowder v. United States, 920 F.Supp. 675, 677-78 (W.D.N.C.1996) (same), appeal dismissed, 89 F.3d 830, 1996 WL 366250 (4th Cir. June 2, 1996) (unpublished [200] decision), cert. denied, — U.S. -, 117 S.Ct. 216, — L.Ed.2d - (1996). I find that Bolling’s admissions at the plea colloquy are more than adequate to sustain his plea and conviction for carrying a firearm under § 924(e), and his motion is therefore denied.

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United States v. Bolling, 937 F. Supp. 198, 1996 U.S. Dist. LEXIS 11770, 1996 WL 467207 (W.D.N.Y. 1996).

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