UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-20667
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES OSCAR COOPER,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas (H-97-CV-788)
January 9, 2001
Before GOODWIN,* GARWOOD, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:**
Appellant James Cooper challenges the partial denial of
his § 2255 motion, which attacked his conviction for using or
carrying a firearm in connection with a drug crime under 18 U.S.C.
§ 924(c)(1). He argues that the presence of nearby shotguns was
insufficient to establish that he used or carried the shotguns. We
agree, and we vacate this conviction, but the case must be remanded
for resentencing.
* Circuit Judge of Ninth Circuit, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. FACTS
Cooper owned a heavily fortified private club in Houston.
He used the club as a base for drug trafficking operations. Police
officers found large quantities of drugs and weapons there during
searches between March and October 1990.
The events relevant to this appeal took place in May
1990. Police officers conducting a “check” at the club heard an
argument over money in an upstairs office. They entered the office
and observed Cooper sitting on a couch holding a bag with two grams
of crack cocaine. Another man stood in the room with a pistol in
his waistband. Two shotguns, one of them loaded, lay against the
wall in an open closet, approximately six to eight feet away from
Cooper. Cooper informed the officers that he owned the shotguns.
In 1991, a jury convicted Cooper of numerous drug
trafficking crimes. One of these convictions was for using or
carrying the pistol and shotguns during and in relation to a drug
trafficking crime under 18 U.S.C. § 924(c)(1). Cooper filed a
successive 28 U.S.C. § 2255 motion to vacate this conviction for
insufficient evidence in light of Bailey v. United States, 516 U.S.
137, 143 (1995) (holding that “use” under the statute means more
than mere possession). The magistrate judge held that the evidence
was insufficient to show that Cooper used or carried the pistol.
It denied the motion, however, because it found sufficient evidence
to show that Cooper carried the shotguns. Cooper appealed, and
2 this court granted a certificate of appealability to consider
whether the evidence was sufficient to convict him of this count.
STANDARD OF REVIEW
We review the district court’s factual findings on a
§ 2255 petition for clear error. We review its conclusions of law
de novo, applying the same standards as the district court. See
United States v. Wainuskis, 138 F.3d 183, 185 (5th Cir.1998).
The government argues that the abuse of discretion
standard applies, citing United States v. Cullum, 47 F.3d 763, 764
(5th Cir.1995). In Cullum, the district court denied a § 2255
motion for abuse of § 2255 proceedings. The district court in this
case did not deny this motion for abuse of § 2255, so Cullum does
not apply.
DISCUSSION
Cooper argues that the evidence was insufficient to
convict him under § 924(c)(1). At the time of his conviction,
§ 924(c)(1) provided:
Whoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime . . . be sentenced to imprisonment for five years. . . .”
Historical and Statutory Notes, 18 U.S.C.A. § 924 (West 2000) at
424 (emphasis added). The government does not dispute that in
light of Bailey, Cooper did not “use” the firearms. At issue is
3 whether the evidence was sufficient for a jury to conclude that he
“carried” them.1
Mere possession of a firearm cannot support a conviction
under the carry prong. See Wainuskis, 138 F.3d at 186. When a
vehicle is not involved, the defendant must move the weapon in some
fashion and the weapon must also be “within arm’s reach (readily
accessible).” See id. at 187.2
In Wainuskis, a drug trafficker admitted purchasing guns
to protect her drugs in Petal, Mississippi. She later moved to
Ellisville, Mississippi and continued to sell drugs. Police
officers found Wainuskis lying in bed. A loaded semi-automatic
pistol lay within arm’s reach under the edge of the mattress. The
court inferred that Wainuskis had transported the pistol during the
move and kept it within reach to protect the drugs. See id. at
187-88. It rejected her § 2255 claim that the evidence was
insufficient to convict her under the carry prong of § 924(c)(1).
See id.
In United States v. Hall, 110 F.3d 1155 (5th Cir.1997),
narcotics agents found Hall in a room and observed a firearm on the
1 Bailey did not alter law as to the carry prong. See Wainuskis, 138 F.3d at 186. 2 While this court stated that the carry prong required either transportation or arm’s reach in United States v. Hall, 110 F.3d 1155, 1161 (5th Cir.1997), Wainuskis established that both are necessary. See Wainuskis, 138 F.3d at 187 n.12.
4 floor close to drugs. The evidence did not show the spatial
arrangement of Hall and other defendants with respect to the gun.
There was also no evidence that Hall transported the gun to the
room. The court found the evidence insufficient to support his
conviction under the carry prong. See id. at 1162.
Finally, the parties cite two unpublished decisions on
this issue. In United States v. Townsend, 1999 U.S. App. LEXIS
13872, at *16-17 (5th Cir. June 24, 1999), this court reversed a §
924(c)(1) conviction because a pistol lying on the edge of a hot
tub was not within arm’s reach of Townsend while he was in bed. In
United States v. Morris, 1997 U.S. App. LEXIS 11976, at *5 (5th
Cir. May 23, 1997), this court held that a firearm on a table next
to a sofa on which the defendant was sitting supported a §
924(c)(1) carrying conviction.
Turning to this case, the evidence is insufficient to
support Cooper’s conviction under the carry prong. Shotguns in a
closet six to eight feet away are not within arm’s reach. It is
too much of a reach to find that Cooper could have grabbed the guns
at such a distance from him in order to assist his crime.
The government contends that Cooper is also guilty under
§ 924(c)(1) because the unidentified man in the room was a co-
conspirator who carried a pistol. Defendants are responsible under
§ 924(c)(1) for the acts of other conspiracy members in pursuit of
their unlawful scheme. See United States v. Wilson, 105 F.3d 219,
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-20667
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES OSCAR COOPER,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas (H-97-CV-788)
January 9, 2001
Before GOODWIN,* GARWOOD, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:**
Appellant James Cooper challenges the partial denial of
his § 2255 motion, which attacked his conviction for using or
carrying a firearm in connection with a drug crime under 18 U.S.C.
§ 924(c)(1). He argues that the presence of nearby shotguns was
insufficient to establish that he used or carried the shotguns. We
agree, and we vacate this conviction, but the case must be remanded
for resentencing.
* Circuit Judge of Ninth Circuit, sitting by designation. ** 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. FACTS
Cooper owned a heavily fortified private club in Houston.
He used the club as a base for drug trafficking operations. Police
officers found large quantities of drugs and weapons there during
searches between March and October 1990.
The events relevant to this appeal took place in May
1990. Police officers conducting a “check” at the club heard an
argument over money in an upstairs office. They entered the office
and observed Cooper sitting on a couch holding a bag with two grams
of crack cocaine. Another man stood in the room with a pistol in
his waistband. Two shotguns, one of them loaded, lay against the
wall in an open closet, approximately six to eight feet away from
Cooper. Cooper informed the officers that he owned the shotguns.
In 1991, a jury convicted Cooper of numerous drug
trafficking crimes. One of these convictions was for using or
carrying the pistol and shotguns during and in relation to a drug
trafficking crime under 18 U.S.C. § 924(c)(1). Cooper filed a
successive 28 U.S.C. § 2255 motion to vacate this conviction for
insufficient evidence in light of Bailey v. United States, 516 U.S.
137, 143 (1995) (holding that “use” under the statute means more
than mere possession). The magistrate judge held that the evidence
was insufficient to show that Cooper used or carried the pistol.
It denied the motion, however, because it found sufficient evidence
to show that Cooper carried the shotguns. Cooper appealed, and
2 this court granted a certificate of appealability to consider
whether the evidence was sufficient to convict him of this count.
STANDARD OF REVIEW
We review the district court’s factual findings on a
§ 2255 petition for clear error. We review its conclusions of law
de novo, applying the same standards as the district court. See
United States v. Wainuskis, 138 F.3d 183, 185 (5th Cir.1998).
The government argues that the abuse of discretion
standard applies, citing United States v. Cullum, 47 F.3d 763, 764
(5th Cir.1995). In Cullum, the district court denied a § 2255
motion for abuse of § 2255 proceedings. The district court in this
case did not deny this motion for abuse of § 2255, so Cullum does
not apply.
DISCUSSION
Cooper argues that the evidence was insufficient to
convict him under § 924(c)(1). At the time of his conviction,
§ 924(c)(1) provided:
Whoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime . . . be sentenced to imprisonment for five years. . . .”
Historical and Statutory Notes, 18 U.S.C.A. § 924 (West 2000) at
424 (emphasis added). The government does not dispute that in
light of Bailey, Cooper did not “use” the firearms. At issue is
3 whether the evidence was sufficient for a jury to conclude that he
“carried” them.1
Mere possession of a firearm cannot support a conviction
under the carry prong. See Wainuskis, 138 F.3d at 186. When a
vehicle is not involved, the defendant must move the weapon in some
fashion and the weapon must also be “within arm’s reach (readily
accessible).” See id. at 187.2
In Wainuskis, a drug trafficker admitted purchasing guns
to protect her drugs in Petal, Mississippi. She later moved to
Ellisville, Mississippi and continued to sell drugs. Police
officers found Wainuskis lying in bed. A loaded semi-automatic
pistol lay within arm’s reach under the edge of the mattress. The
court inferred that Wainuskis had transported the pistol during the
move and kept it within reach to protect the drugs. See id. at
187-88. It rejected her § 2255 claim that the evidence was
insufficient to convict her under the carry prong of § 924(c)(1).
See id.
In United States v. Hall, 110 F.3d 1155 (5th Cir.1997),
narcotics agents found Hall in a room and observed a firearm on the
1 Bailey did not alter law as to the carry prong. See Wainuskis, 138 F.3d at 186. 2 While this court stated that the carry prong required either transportation or arm’s reach in United States v. Hall, 110 F.3d 1155, 1161 (5th Cir.1997), Wainuskis established that both are necessary. See Wainuskis, 138 F.3d at 187 n.12.
4 floor close to drugs. The evidence did not show the spatial
arrangement of Hall and other defendants with respect to the gun.
There was also no evidence that Hall transported the gun to the
room. The court found the evidence insufficient to support his
conviction under the carry prong. See id. at 1162.
Finally, the parties cite two unpublished decisions on
this issue. In United States v. Townsend, 1999 U.S. App. LEXIS
13872, at *16-17 (5th Cir. June 24, 1999), this court reversed a §
924(c)(1) conviction because a pistol lying on the edge of a hot
tub was not within arm’s reach of Townsend while he was in bed. In
United States v. Morris, 1997 U.S. App. LEXIS 11976, at *5 (5th
Cir. May 23, 1997), this court held that a firearm on a table next
to a sofa on which the defendant was sitting supported a §
924(c)(1) carrying conviction.
Turning to this case, the evidence is insufficient to
support Cooper’s conviction under the carry prong. Shotguns in a
closet six to eight feet away are not within arm’s reach. It is
too much of a reach to find that Cooper could have grabbed the guns
at such a distance from him in order to assist his crime.
The government contends that Cooper is also guilty under
§ 924(c)(1) because the unidentified man in the room was a co-
conspirator who carried a pistol. Defendants are responsible under
§ 924(c)(1) for the acts of other conspiracy members in pursuit of
their unlawful scheme. See United States v. Wilson, 105 F.3d 219,
5 221 (5th Cir.1997) (affirming a conviction where the defendant
conceded that a co-conspirator violated § 924(c)(1)). The
government argues that the numerous drug transactions in the
fortified club and the fact that Cooper was arguing with an armed
man over money while holding drugs demonstrate that the two
conspired.
While relevant, mere presence at a crime scene or close
association with conspirators does not support an inference of
participation in a conspiracy. See United States v. Maltos, 985
F.2d 743, 746 (5th Cir.1992). We will not “lightly infer a
defendant’s knowledge of and participation in a conspiracy. Thus,
the government may not prove up a conspiracy merely by presenting
evidence placing the defendant in ‘a climate of activity that reeks
of something foul.’” Id. (internal citations omitted) (quoting
United States v. Galvan, 693 F.2d 417, 419) (5th Cir.1982).
In Maltos, the defendant’s “presence at various times and
places coincided to a remarkable extent with that of the
conspirators and of the cocaine. . . .” Id. at 747. The
government presented no proof of knowledge or participation in the
conspiracy other than his association with the conspirators and his
presence at the transactions. See id. at 747. The court found the
evidence insufficient to support a conviction for conspiracy. See
id. at 748.
6 The government cites United States v. Valdiosera-Godinez,
932 F.2d 1093, 1096 (5th Cir.1991) in support of its claim that the
unidentified man was a co-conspirator. In that case, the defendant
was with two drug traffickers in a partially closed storage shed
five feet off the ground. The other men were using tools to remove
concealed drugs from a car. This court concluded that the
defendant’s presence and the “total absence of rational non-
inculpatory explanations of the facts” were sufficient to convict
him of conspiracy. Id.
In this case, there is insufficient evidence to convict
Cooper under § 924(c)(1) using conspiracy liability. Beyond the
man’s mere presence, we know only that he was armed and argued
about money while Cooper held cocaine. There is no evidence of the
man’s identity or what relation he had to Cooper. The facts are
suggestive, but they permit no rational inference of the existence
of an agreement essential to conspiracy. A jury could not find
beyond a reasonable doubt that Cooper unlawfully used a firearm
through his relationship with the armed man.
Finally, the government argues that if we vacate this
conviction we should remand to allow the district court to
resentence Cooper under USSG § 2D1.1(b)(1). We agree. See United
States v. Hernandez, 116 F.3d 725, 727 (5th Cir.1997) (district
court can resentence other counts under § 2D1.1(b)(1) if
7 defendant’s 924(c)(1) conviction is vacated); United States v.
Rodriguez, 114 F.3d 46, 47 (5th Cir.1997) (same).
CONCLUSION
For these reasons, we VACATE and REMAND for entry of
judgment vacating this § 924(c)(1) conviction and vacate Cooper’s
entire sentence for resentencing in light of the grant of habeas
relief.
VACATED and REMANDED with instructions.