United States v. Robert W. Schmalzried

152 F.3d 354, 1998 U.S. App. LEXIS 20302, 1998 WL 514655

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 20, 1998
• Docket: 96-41086
• Status: Published

Opinions

PER CURIAM:

Appellant Robert W. Schmalzried (“Schmalzried”) appears before this court a second time¹ and appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his judgment of conviction pursuant to 18 U.S.C. § 924(e)(1) (Supp.1998), due to the Supreme Court’s clarification of what constitutes “use” of a firearm in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The Appellant contends that post-Bailey, his conviction cannot rest on the “use” prong of § 924(e)(1), and that the evidence does not support his conviction under the “carry” prong. The district court denied Appellant’s request for habeas relief, concluding that while his conviction under the “use” prong of § 924(c)(1) was invalid, the conviction could stand under the “carry” prong. The Appellant now appeals the district court’s denial of his habeas petition and requests that this Court vacate his judgment of conviction under § 924(c)(1). For the reasons that follow, we reverse the district court’s denial of habeas relief, vacate Schmal-zried’s conviction under § 924(c)(1), and remand for entry of a new plea.

I.

Following the execution of a search warrant at a residence in Tyler, Texas, Robert W. Schmalzried, a.k.a. “Beeper Bob” (“Schmalzried”) and several codefendants, including his wife, Kelly Ann Schmalzried, were arrested. When the agents entered the residence, Schmalzried and two codefendants were cooking methamphetamine (“meth”) in the kitchen. The agents found a loaded .25 caliber Model 9 Walther semi-automatic pistol in Kelly Ann Schmalzried’s purse, which was placed on the coffee table in the living room. No one was in the living room when the agents entered the residence. Schmal-zried admitted that he had given the gun to his wife for her personal protection,² but stated that he was unaware of the purse’s location at the time of his arrest. A code-fendant, arrested at a motel some distance away, claimed that the group had used guns to protect themselves and their drugs. Kelly Ann Schmalzried stated that earlier in the day she had seen her husband place the gun and two syringes in her purse.

Schmalzried entered into a plea agreement with the Government, in which he pled guilty to possession of a listed chemical with intent to manufacture a controlled substance, in violation of 21 U.S.C. § 841(d)(2) (1976 & Supp.1998), and to using or carrying a firearm during and in relation to any drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Supp.1998). The district court imposed consecutive sentences of ten years and five years for the respective violations. Following the Supreme Court’s issuance of Bailey, Schmalzried filed a § 2255 motion to vacate his conviction under 18 U.S.C. § 924(c)(1). The district court denied his habeas petition, and Schmalzried now appeals that decision to this Court.

II.

We review a district court’s denial of a § 2255 motion under two standards. Because “acceptance of a guilty plea is considered a factual finding that there is an adequate basis for the plea,” the standard of review of this acceptance is clear error. United States v. Rivas, 85 F.3d 193, 194 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 593, 136 L.Ed.2d 521 (1996). We review the court’s conclusions of law de novo. United States v. Faubion, 19 F.3d 226, 228 (5th Cir.1994).

III.

The district court concluded that Schmalzried’s conviction cannot stand on the “use” prong of § 924(c)(1) after Bailey,³ The Government does not challenge this part of the district court’s opinion. The district court upheld his conviction under the “carry” prong of § 924(c)(1),⁴ however, and it is the validity of this conclusion that is the subject of this appeal.

Bailey did not address the “carry” prong of § 924(c)(1), and therefore has no effect on this Circuit’s precedents regarding “carry” convictions.⁵ In a nonvehieular context, our cases require that the weapon be moved or transported in some manner, or borne on one’s person, during and in relation to the commission of the drug offense.⁶ The Supreme Court has held that “during and in relation to any drug trafficking crime” means that “the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.” Smith v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993).

The gun was “carried” when Schmalzried moved it to Kelly Ann Schmalzried’s purse earlier during the day on which the police raided the meth lab. As a result, we examine the evidence’to determine whether the carry occurred “during and in relation to” a drug offense.

The dissent reads Smith to interpret “during and in relation to” to mean that the firearm, must have some purpose or effect with respect to the drug crime, but that no such nexus is required between “carrying” the firearm and the drug offense. We disagree. Nothing in Smith requires us to ignore the plain language of the statute. Smith explains the “during and in relation to” clause in the context of “using” a firearm. The Court explained that an attempt to trade a gun for drugs is a “use,” and then explained that to be used during and in relation to a drug offense, “the firearm must have some purpose or effect with respect to the drug trafficking crime.” 508 U.S. 223 at 238, 113 S.Ct. 2050 at 2058.

Other courts read Smith the same way. A New York district court held that under Smith, “during and in relation to a drug trafficking offense means that the carrying of the weapon somehow furthered or facilitated the underlying offense.” Triestman v. Keller, No. 97-CV-1460, 1998 WL 52026, at *3 (N.D.N.Y. Feb. 2, 1998). The court held: “In order for the carrying of a firearm to be considered during and in relation to a conspiracy, however, there must be ‘a nexus between the carriage of the gun and the underlying crime of conspiracy.’ ” Id.

Other courts also require the government to require a nexus between use or carriage and the underlying offense. See, e.g., United States v. Lampley, 127 F.3d 1231, 1241 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1098, 140 L.Ed.2d 153 (1998), cert. denied, - U.S. -, 118 S.Ct. 1099, 140 L.Ed.2d 153 (1998), and cert. denied, — U.S. -, 118 S.Ct. 1201, 140 L.Ed.2d 330 (1998) (“Essentially, we must determine whether the evidence in the record is sufficient, as to both Mr. Lampley and Mr. Baird, to establish a nexus between the carriage of the gun and the underlying crime of conspiracy.”); In re Hanserd, 123 F.3d 922, 927 (6th Cir.1997) (The court declined to uphold the § 924(c)(1) conviction where “[t]here was no evidence that Hanserd was engaged in any substantive drug crime while he carried the guns” and where the evidence “in no way indicates a nexus between those crimes and carrying the guns.”); United States v. Pomranz, 43 F.3d 156, 160 (5th Cir.1995) (“Thus, only the act of carrying a weapon’‘during and in relation to ... [a] ... drug trafficking crime’ is a substantive offense under § 924(c)(1).”).

We . therefore hold that under Smith, the government was obliged to demonstrate that by its carriage (to Kelly Ann Schmalzried’s purse), the firearm had a “purpose or effect” with respect to the drug offense (possession of a controlled chemical). The record is silent on a number of facts and that silence prevents us from drawing an inference that, by its carriage, the firearm had such a purpose or effect. We do not know where the purse was located when Schmalzried placed the gun in it or whether Schmalzried “carried” the pistol into the house. Schmalzried moved the gun within the house before he placed it in his wife’s purse, but we do not know the location of the gun immediately before-he placed it in her purse or where the purse was located when he placed the gun in it.

Because the record’s silence renders a crit-icál element of a “carry” offense under § 924(c)(1) unsatisfied, and the conviction cannot survive under the “use” prong after Bailey, we conclude that Schmalzried’s plea of guilty with regard to this count must be vacated. We therefore reverse the district court’s denial of habeas relief, vacate the plea of guilty under § 924(c)(1), and remand this case to the district court for entry of a new plea.

REVERSED, VACATED and REMANDED.

1 . In a direct appeal, Schmalzried contended that there was insufficient evidence to support a conviction under 18 U.S.C. § 924(c)(1). We affirmed his conviction in an unpublished opinion. United States v. Schmalzried, 947 F.2d 1487 (5th Cir.1991).

2 . She had been raped when she was twelve years old.

3 . After Bailey, a person cannot be convicted of "use” under 18 U.S.C. § 924(c)(1) for merely possessing the firearm; the person must actively employ the firearm. Bailey, 516 U.S. at 144, 116 S.Ct. 501 at 506. The Bailey Court stated that the following actions constitute "active employment”; "brandishing, displaying, bartering, striking with and ... firing or attempting to fire, a firearm.” Id. at 148, 116 S.Ct. 501 at 508. Because the firearm supporting Schmalzried's § 924(c)(1) offense was enclosed in a purse and located in an adjacent room of the house, there was no evidence of the kind of “use” contemplated in Bailey.

4 . Where a conviction fails under the "use” prong of § 924(c)(1) after Bailey, it may stand if the "carry” prong is satisfied. See, e.g., Bailey, 516 U.S. at 151, 116 S.Ct. 501 at 509 (remanding for consideration whether the convictions which fail under the "use” prong may survive under the “carry” prong).

5 . Rivas, 85 F.3d at 195; United States v. Tolliver, 116 F.3d 120, 126-27 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 324, 139 L.Ed.2d 251 (1997); United States v. Muscarello, 106 F.3d 636, 638 (5th Cir.1997), aff'd, - U.S. -, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998).

6 . See, e.g., United States v. Thompson, 122 F.3d 304, 307 (5th Cir.1997).