United States v. Jon William Guess, Opinion

203 F.3d 1143, 2000 Daily Journal DAR 1597, 2000 Cal. Daily Op. Serv. 1111, 2000 U.S. App. LEXIS 1741, 2000 WL 144389

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2000
• Docket: 98-16323
• Status: Published

Opinions

SNEED, Circuit Judge:

A federal grand jury indicted Jon William Guess (“Appellant”) on July 2, 1992, and charged him with attempting to manufacture methamphetamine (“Count One”), maintaining a place for the manufacture of methamphetamine (“Count Two”), and using and carrying a firearm in relation to a drug offense (“Count Three”). 21 U.S.C. §§ 846, 841(a)(1), 856, and 18 U.S.C. § 924(c)(1). Pursuant to a plea agreement, Appellant pleaded guilty to the first and third counts. Appellant was then sentenced to 87 months imprisonment on Count One and, having admitted ownership of the semi-automatic pistol, to 60 consecutive months imprisonment on Count Three. On April 11, 1994, following Appellant’s direct appeal, this court affirmed the district court’s judgment and sentence.

Appellant at his plea colloquy swore to having “possessed a Smith and Wesson Model 39 ... which he used to protect himself and his methamphetamine laboratory.” He maintained that he lived in a terraced apartment above the laboratory, the site of his arrest. According to the district court, “[T]he Government’s exhibits indicate that petitioner brought the firearm out onto the porch when the officers arrived at his residence to execute the search warrant and that the firearm was loaded and ready to fire.” In one of these exhibits was a letter to defendant’s counsel in which the government reported statements Appellant made at the time of his arrest. The letter stated: “After discovering the weapon on the balcony, the defendant, who was being secured by officers, volunteered that he dropped the weapon after he discovered the identity of the officers.” A more extensive recitation of the facts is not necessary.

In this appeal, Appellant protests the denial of his consolidated motion, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. This court granted a certificate of appealability on the issue of whether the evidence was sufficient to convict Appellant of “using” a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). The certificate specifically referred to Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); and United States v. Benboe, 157 F.3d 1181 (9th Cir.1998).

We review de novo a district court decision to deny a federal prisoner’s 28 U.S.C. § 2255 motion and we review its factual findings for clear error. See United States v. Navarro, 160 F.3d 1254, 1255 (9th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 2354, 144 L.Ed.2d 249 (1999); Benboe, 157 F.3d at 1183; Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir.1995).

Jurisdiction is appropriate under 28 U.S.C. § 1291. We conclude that the district court erred when it determined that Appellant “used” a weapon in violation of 924(c)(1), and we therefore reverse.

I.

The Procedural Default Issue

Before we address Appellant’s argument that the evidence does not support his guilty plea to “using” a weapon in violation of Section 924(c)(1), we must determine whether the Appellant has procedurally-defaulted this claim.

Although Appellant contested his sentence on direct appeal, he failed to challenge the validity of his plea until he filed his Section 2255 motion. Ordinarily a Section 2255 petitioner so raising a Bailey argument would be in procedural default. Bousley, 523 U.S. at 621, 118 S.Ct. 1604 (finding default where petitioner challenging his guilty plea did not raise Bailey claim in direct appeal); United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1588, 71 L.Ed.2d 816 (1982) (noting-that a motion to vacate or modify a sentence under 28 U.S.C. § 2255 cannot be used as a substitute for a direct appeal); Benboe, 157 F.3d at 1184 (applying Bousley and finding default where petitioner challenging his guilty plea did not raise Bailey claim in 'direct appeal). To overcome such' default, Appellant would have to show either (1) “cause” and actual “prejudice” to explain .the default, or (2) that he was “actually innocent” of, inter alia, the crime for which he was indicted. Bousley, 523 U.S. at 622, 118 S.Ct. 1604; see also Benboe, 157 F.3d at 1184 (applying Bousley).

However, the government failed initially to argue the default issue. It first raised Appellant’s potential default in its response brief to this court. In United States v. Barron, 172 F.3d 1153 (9th Cir.1999) (en banc), we declared, “[This court] ... will usually not allow the government to raise a petitioner’s default for the first time on appeal, when it did not take the opportunity to do so before the district court.” 172 F.3d at 1156. When the government raises a petitioner’s default for the first time on appeal, this court usually finds that the government has “waived” its default defense. Id. Barron thus requires that the government show “extraordinary circumstances” which suggest that “justice would be served by overlooking the government’s omission [at the district court]” in order for the government to avoid waiver. Id. That standard is not met here.

Appellant’s failure to contest his plea on Bailey grounds in his direct appeal cannot be said to be so unusual “ ‘that its legal basis [was] not reasonably available to [government] counsel.’ ” Id. at 1157 (quoting Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). In fact, the government had been litigating how procedural default rules should apply to Bailey challenges in several other circuits when Appellant’s Section 2255 motion was before the district court. See id.; In re Hanserd, 123 F.3d 922 (6th Cir.1997); Lee v. United States, 113 F.3d 73 (7th Cir. 1997); Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir.1996), rev’d sub nom. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Bamhardt, 93 F.3d 706 (10th Cir.1996). This litigation demonstrates that the government was familiar with default issues. It could have raised Appellant’s default in the district court and it should have done so.

The government challenges this conclusion with a 1995 memorandum to all United States Attorneys in which the Acting Assistant Attorney General determined: “[W]e \i.e., the government] should concede that a Bailey claim is cognizable under Section 2255 and that a defendant who has a valid claim under Bailey need not satisfy the cause and prejudice [or actual innocence] standard.” The government suggests by this document that it did not believe that it had a legal basis to raise Appellant’s default when Appellant’s Section 2255 motion was before the district court. Its actions belie its assertion. To repeat, the government had often raised the default issue in other district court proceedings by the time Appellant’s motion was decided. See, e.g., Bousley, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (discussing petitioner’s default as raised in the district court). Therefore, justice would not be served by overlooking the government’s waiver.² See Barron, 172 F.3d at 1156.

II.

The “Use” Issue

We now turn to the substance of Appellant’s Section 2255 challenge, and we find that the record does not support Appellant’s guilty plea to “use” of a firearm within the meaning of Section 924(c)(1).

The Supreme Court held in Bailey that a Section 924(c)(1) charge requires evidence sufficient to show an “active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.” 516 U.S. at 143, 116 S.Ct. 501. Such an “active employment” understanding certainly includes “brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm.” Id. at 148, 116 S.Ct. 501. The Court was clear that this was not an exclusive list of “uses.” See id. (“[W]e briefly describe some of the activities that fall within ‘active employment of a firearm ....’”) (emphasis added). In fact, “even an offender’s reference to a firearm in his possession could satisfy § 924(c)(1).” Id. However, the Court also emphasized that “use” does not encompass “mere possession,” especially where a weapon is kept at or near the site of a drug crime for the purpose of “emboldening]” the offender. Id. at 149, 116 S.Ct. 501. Without additional facts, such as a wrongdoer’s disclosing the availability of the weapon in order to intimidate, the “inert presence” or simple “storage” of a firearm does not equal “use.” Id.

In this case, Appellant drew the loaded weapon, clicked the safety off, and held it for the protection of his methamphetamine laboratory. Having heard noises outside, he took his weapon in hand and went patrolling on his apartment balcony. After the authorities identified themselves, Appellant dropped the gun, which was found next to its holster. With a round in its chamber, the gun was ready to fire.

However, the agents did not see or hear about the gun while it was-in Appellant’s hands. Since the officers were unaware of the pistol until after he was arrested, Appellant correctly argues that, in this case, he could not be incarcerated for “use.” See id. at 149, 116 S.Ct. 501. While Appellant did more than merely “store” his pistol nearby or within the folds of his clothing, the weapon was essentially concealed. Its presence was legally inert.

The Bailey Court evinced concern that a too broad reading of “use” would “undermine” “virtually any function for ‘carry.’ ” Id. at 146, 116 S.Ct. 501. In light of this concern, we cannot say that the instant case is an example of “use” and “carry” overlapping. To find that Appellant was using a gun would be to ignore the Supreme Court’s admonition, because Appellant had not yet “converted” the gun to his “service.” He was simply walking around with it. . Under Bailey, Appellant did not “ ‘carry out a purpose or action by means of ” a weapon. Id. at 145, 116 S.Ct. 501 (quoting Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)).

Based on the record, the district court found “persua[sive]” evidence that Appellant “carried” a weapon within the meaning of Section 924(c)(1). Although it could not apply the latest Supreme Court pronouncement on the meaning of “carry,” see Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), the district court probably reached the correct conclusion. In Muscarello, the Supreme Court cited Black’s Law Dictionary (6th ed.1990) which defined the phrase “carry arms or weapons” as: “To wear, bear or carry them upon the person or in the clothing or in a pocket, for the purpose of use, or for the purpose of being armed and ready for offensive or defensive action in case of conflict with another person.” Id. at 130, 118 S.Ct. 1911. Thus, Appellant most likely “carried” the pistol in violation of 18 U.S.C. § 924(c)(1) by simply “bearfing] arms on his person.” Id.

Without more, patrolling a methamphetamine laboratory with a loaded weapon, even with its safety disengaged and its holster discarded, is not “using” a gun. Consequently, all parties to the plea agreement were mistaken when Appellant pleaded guilty to “use” under the pre-Bailey meaning of Section 924(c)(1). Under the veneer of the word “use,” Appellant actually pleaded guilty to “possessing” a gun in relation to a drug trafficking offense, which is behavior Congress did not criminalize in Section 924(c)(1). Appellant’s behavior constituted only “carrying.” We therefore find that “the sentence imposed [on Appellant] was not authorized by law.” 28 U.S.C. § 2255. Accordingly, the district court’s dismissal of Appellant’s Section 2255 motion to vacate, set aside, or correct his sentence is hereby

REVERSED.

2 . In its response brief, the government asks this court to adopt the reasoning of Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir.1998) (establishing a multi-factor test to relieve the government’s waiver of a Bailey petitioner’s default). We decline to do so, because Barron is on point and is dispositive.