Revised September 15, 1998
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 96-41086
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
ROBERT W. SCHMALZRIED,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Texas
August 20, 1998
Before DAVIS, E. GARZA and BENAVIDES, Circuit Judges.
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(c)(1) (Supp. 1998), due to the Supreme
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 We affirmed his conviction in an unpublished opinion.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). Court’s clarification of what constitutes “use” of a firearm in
Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501 (1995). The
Appellant contends that post-Bailey, his conviction cannot rest on
the “use” prong of §924(c)(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 Schmalzried’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. Schmalzried admitted that he had given the
2 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
codefendant, 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, 117 S.
2 She had been raped when she was twelve years old.
3 Ct. 593 (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 nonvehicular context, our cases require
that the weapon be moved or transported in some manner, or borne on
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, 118 S. Ct. 324 (1997); United States v. Muscarello, 106 F.3d 636, 638 (5th Cir. 1997), aff’d, Nos. 96-1654 & 96-8837, 1998 WL 292058 (Apr. 18, 1997).
4 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 (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.
6 See, e.g., United States v. Thompson, 122 F.3d 304, 307 (5th Cir. 1997).
5 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, 118 S. Ct. 1098 (1998), cert. denied, 118 S. Ct.
1099 (1998), and cert. denied, 118 S. Ct. 1201 (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
6 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 critical 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.
7 EMILIO M. GARZA, Circuit Judge, dissenting:
The question presented by this § 2255 petition is whether the
district court committed clear error in concluding that the
defendant “carried” a firearm “during and in relation to” a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1) when (1)
the defendant took the gun, and together with several syringes,
placed it in his wife’s purse on the critical day in the drug
trafficking conspiracy, (2) other members of the drug conspiracy
also carried guns, and (3) other members of the conspiracy told
government agents that the group used guns for protection while
manufacturing drugs. Against this weighty evidence, the defendant
asserts only that he did not “carry” the gun “during and in
relation to” a drug trafficking crime because he had previously
given the gun to his wife as a result of her rape at a young age.
Concluding that the district court did not commit clear error, I
respectfully dissent.
We review challenges to the factual basis for a guilty plea
under FED. R. CRIM. P. 11(f) only for clear error. See United States
v. Rivas, 85 F.3d 193, 194 (5th Cir. 1996). Section 924(c)(1), by
its very terms, requires three elements to sustain a conviction
under its “carry” prong: (1) there is a crime of violence or drug
trafficking crime; (2) the firearm is “carried,” and (2) such
“carrying” is “during and in relation to any crime of violence or
drug trafficking.” The majority assumes that Schmalzried’s carrying
8 of the gun and placement of it into his wife’s purse along with
several syringes satisfies the “carry” requirement. The majority
asserts, however, that no nexal link exists between Schmalzried’s
carrying of the gun and the drug offense (and hence, Schmalzried
did not carry the gun “during and in relation to” the drug
trafficking crime) because we purportedly do not know when the gun
was placed in the purse, where the purse was when the gun was
placed in the purse, or how the placement of the gun into the purse
facilitated the conspiracy.7 Contrary to the majority’s conclusion,
relevant case law, as well as the record in this case, supports the
district court’s conclusion that Schmalzried carried the gun
“during and in relation to” his drug trafficking crime.
In Smith v. United States, 508 U.S. 223, 237-38, 113 S. Ct.
2050, 2058-59, 124 L. Ed. 2d 138 (1993), the Supreme Court gave an
expansive interpretation to the phrase “during and in relation to”:
The phrase “in relation to” is expansive . . . as
the Courts of Appeals construing § 924(c)(1) have
recognized . . . According to Webster’s, “in relation to”
means “with reference to” or “as regards.” The phrase
“in relation to” thus, at a minimum, clarifies that the
7 Contrary to the majority’s unfounded assertion that “[t]he 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 trafficking crime, but that no such nexus is required between ‘carrying’ the firearm and the drug offense,” I agree with the majority opinion that a nexal link is required between the carrying of the gun and the predicate drug offense. See Majority Op. at 5. As a factual matter and as I discuss below, however, I believe that the requisite nexal link exists in this case.
9 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. As one
court has observed, the “in relation to” language
“allay[s] explicitly the concern that a person could be”
punished under § 924(c)(1) for committing a drug
trafficking offense “while in possession of a firearm”
even though the firearm’s presence is coincidental or
entirely “unrelated” to the crime. Instead, the gun at
least must “facilitat[e], or ha[ve] the potential of
facilitating,” the drug trafficking offense.
Id. (citations omitted); see also Muscarello v. United States, 118
S. Ct. 1911, 1918 (1998) (“Congress added these words [‘during and
in relation to’] in part to prevent prosecution where guns
‘played’ no part in the crime.”). The Supreme Court’s decision in
Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed.
2d 472 (1995), did not disturb the meaning of this phrase. See
United States v. Tolliver, 116 F.3d 120, 125 (5th Cir. 1997).
A rendition of the facts, as detailed in the government’s
proffer and attached affidavits of federal officers, indicates the
reasonableness of the factual basis for the district court’s
conclusion that Schmalzried carried the gun and that a nexal link
existed between the carrying of the gun and the drug trafficking
10 crime. Drug Enforcement Agency (“DEA”) agents in Tyler, Texas,
learned, on or about December 8, 1990, that several persons had
traveled from Houston, Texas to Tyler to manufacture drugs. DEA
agents also learned at approximately the same time that a chemical
company in Alabama had shipped chemicals necessary to manufacture
methamphetamine to Tyler by Federal Express. DEA agents, assisted
by local police officers, began surveillance of various locations
on December 10, and spotted a U-Haul truck at a local motel. The
U-Haul truck had been rented in Houston by James Smertneck, who
happened to be the same person to whom the shipment of chemicals
was to be delivered. Subsequent surveillance over the next few
days identified Smertneck, Michael Edmond Swisher, Susan Ann
Lindsey, Vera Lynn McDonald, Robert Wilmer Schmalzried (the
defendant here), and Kelly Anne Schmalzried (“Kelly Anne;” Robert
Wilmer Schmalzried’s wife) coming and going between the motel and
a residence at 3023 Benbrook Drive in Tyler.
Events came to a head on December 12. At around 10:15 a.m.,
agents observed Smertneck and Lindsey leave the residence at 3023
Benbrook and drive to the Federal Express office to pick up the
chemicals in a car. On the way to the Federal Express office,
Smertneck drove erratically, making several u-turns and cut-backs,
as if in an attempt to determine whether he was being followed.
Smertneck eventually arrived at the Federal Express office, picked
up the chemicals, and returned to 3023 Benbrook. After unloading
the chemicals, several (unidentified) members of the group got in
11 the car at 10:51 a.m. and drove to the motel where the U-Haul was
located. At 11:26 a.m., both the car and U-Haul left the motel and
drove to 3023 Benbrook. Members of the group then unloaded the U-
Haul, making a total of nine trips to do so. Another member of the
group left 3023 Benbrook, drove to K-Mart, and returned to the
residence. Members of the group apparently then settled down to
manufacture methamphetamine, the manufacture of which takes eight
hours. While they were doing so, agents swore out a search
warrant, and executed the warrant at approximately 8:30 p.m. that
night. When agents executed the warrant, they found Schmalzried,
Kelly Anne, and Smertneck clustered around the methamphetamine
manufacturing apparatus. Swisher and McDonald were located in
other rooms in this house. Agents later determined that the
apparatus and quantity of chemicals in the house was sufficient to
produce 1.5 kg to 2 kg of methamphetamine. Agents also discovered
a loaded .25 caliber semi-automatic pistol in the purse of Kelly
Anne lying on the coffee table in the living room.8 Kelly Anne
told agents that Schmalzried had put the gun in her purse earlier
that same day along with two syringes. She further told police
that she had seen Schmalzried handling the gun earlier that day.
Police executed another search warrant at the motel where the U-
Haul had previously been seen. The police discovered Lindsey at
the motel, who had in her possession a fully loaded 12-gauge
8 Schmalzried was charged with violating § 924(c)(1) based on this pistol.
12 shotgun. She told agents that Swisher had directed her to carry
the shotgun from the cab of the U-Haul truck into the motel room.
Lindsey told also agents that the group had firearms to protect
themselves and the drugs while they were being manufactured.
Several inferences emerge from this evidence. First,
Schmalzried was indicted for conspiracy to manufacture
methamphetamine. We have, on several occasions, suggested that all
of the acts that occur during a conspiracy can be considered in
determining the sufficiency of the factual basis for a § 924(c)(1)
guilty plea in cases where the defendant is charged with, but not
convicted of, conspiracy. See United States v. Ramos-Rodriguez,
136 F.3d 465, 467 (5th Cir. 1998) (“This court has recognized that
[§ 924(c)(1)] does not require an underlying conviction . . . It is
the ‘fact of the offense, and not a conviction, that is needed to
establish the required predicate.’”) (quoting United States v.
Munoz-Fabela, 896 F.2d 908, 910-11 (5th Cir. 1990)) (upholding a
conviction for violation of § 924(c)(1) based on events covered by
an indictment for conspiracy that the government had dismissed as
part of a plea bargain). Thus, although Schmalzried pled guilty
only to possession of controlled substances and the § 924(c)(1)
violation, because the government indicted Schmalzried for
conspiracy, all of the other actions occurring during the
conspiracy were properly before the district court in determining
whether Schmalzried carried the gun “during and in relation” to the
13 drug trafficking crime. See also United States v. Wainuskis, 138
F.3d 183, 187-88 (5th Cir. 1998).
Second, the majority misconstrues the record when it states
that we do not know “whether he [Schmalzried] brought the pistol
into the house.” Members of the group, including Schmalzried,
traveled to Tyler specifically to manufacture drugs.9 Thus, unlike
the case in which an individual is arrested in his own home and a
gun and drugs are present, the district court could reasonably
conclude that the only items that members of this group (including
Schmalzried) had with them were those items that they had brought.
As the Supreme Court recently noted in Muscarello, 118 S. Ct. at
1916, § 924(c)(1)’s “chief legislative sponsor has said that the
provision seeks ‘to persuade the man who is tempted to commit a
federal felony to leave his gun at home’” (quoting 114 Cong. Rec.
22231 (1968) (Rep. Poff)). See also Busic v. United States, 446
U.S. 398, 405, 100 S. Ct. 1747, 1752, 64 L. Ed. 2d 381 (1980)
(noting that Representative Poff’s statements are “crucial
material” in interpreting the purpose of § 924(c)).
Neither Schmalzried nor the majority disputes the fact that
Schmalzried carried the gun “during” the period in which the
conspiracy continued. Conspiracy to manufacture methamphetamine is
a continuing crime. See United States v. Thomas, 12 F.3d 1350,
9 Although some group members came from Houston, Schmalzried lived in Mineral Wells, Texas, at the time of the offense. Mineral Wells is west of Dallas and a good distance from Tyler.
14 1370 (5th Cir. 1994). The evidence indicates that the conspiracy
began, at the latest, on December 8, when group members traveled
from Houston to Tyler, and when Smertneck ordered the chemicals
necessary to manufacture methamphetamine. Schmalzried carried the
gun on December 12, “during” the requisite period of drug
trafficking activities.
Thus, the majority’s outcome hinges on the proposition that
Schmalzried did not carry the gun “in relation to” the conspiracy
(i.e., that no nexal link exists between Schmalzried’s carrying of
the gun and the predicate drug offense). It asserts that “[t]he
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.” Contrary to this assertion, however,
because we know that Schmalzried’s carrying of the gun and his
placement of it into his wife’s purse sometime on December 12))a
day during which members of the group procured chemicals, went to
various locations to retrieve the methamphetamine manufacturing
equipment, and manufactured methamphetamine all day long))the
precise time at which he did so is irrelevant. Kelly Anne’s
statements to DEA agents that she saw Schmalzried carrying the gun
earlier that day and that he personally placed the gun in her purse
are highly significant: Schmalzried’s carrying of the gun occurred
during the critical period in the conspiracy when the chemicals
were being gathered, materials assembled, and drugs manufactured,
15 suggesting that the firearm had some “purpose or effect” with
respect to either the manufacture of methamphetamine or the drug
conspiracy. See Smith, 508 U.S. at 238, 113 S. Ct. at 2059; see
also United States v. McKeever, 906 F.2d 129, 134 (5th Cir. 1990)
(Davis, J.) (“Where several guns . . . are found on the premises of
a drug laboratory, the obvious inference is that they were there to
protect the unlawful activity.”). Schmalzried’s carrying of the
gun also occurred as he placed the gun in the purse along with
syringes of a sort that are commonly used for intravenous drug use,
further indicating the close link between the gun and drugs and
suggesting that the gun’s “presence or involvement [was] not the
result of accident or coincidence.” Smith, 508 U.S. at 238, 113 S.
Ct. at 2059; United States v. Beverly, 921 F.2d 559, 563 (5th Cir.
1991) (“There is [] no doubt that firearms are drug traffickers’
tools of trade.”).
The majority simply fails to address the possibility that the
requisite nexal link between the carrying of the gun and the
conspiracy exists as a result of the gun’s potential to protect the
group’s activities. On the morning of December 12, members of the
group were constantly coming and going from 3023 Benbrook and
taking various actions related to the conspiracy. Judging from
Smertneck’s evasive driving when he went to pick up the chemicals
at the Federal Express office, group members appear to have worried
that they might be under police surveillance. Schmalzried’s
16 carrying of the gun and his placement it into Kelly Anne’s purse,
an item that she would be unlikely to leave behind if she left the
house, is important because that location may have provided
Schmalzried with a handy way to keep the gun nearby in case needed,
whether in the house or in another location, from whence it could
have been used to facilitate the group’s activities. See Smith,
508 U.S. at 238, 113 S. Ct. at 2059; see also Tolliver, 116 F.3d at
126 (upholding conviction under § 924(c)(1) where firearm
potentially could have been used to protect drugs); United States
v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir. 1991) (“Weapons in
the home may facilitate a drug crime because the defendants could
use the guns to protect the drugs.”). Additionally, methamphetamine
manufacture takes eight hours; during this time, group members had
to remain at 3023 Benbrook to monitor the manufacturing process.
Placing the fully loaded gun in a purse in plain view on a coffee
table in the living room of the house where the manufacturing was
taking place, a spot that Schmalzried admitted to the district
court at the Rule 11 plea colloquy was readily accessible, ensured
that he could quickly utilize the gun to fend off intruders or
police. See Smith, 508 U.S. at 238, 113 S. Ct. at 2059; see also
Capote-Capote, 946 F.2d at 1104. These latter two points))
completely unaddressed by the majority))provide clear examples of
how Schmalzried’s carrying of the weapon “somehow furthered or
facilitated the underlying offense.” Triestman v. Keller, No. 97-
17 CV-1460, 1998 52026, at *3 (N.D. N.Y. Feb. 2, 1998). Accordingly,
even if the record does not indicate the precise time that
Schmalzried placed the gun in his wife’s purse or where the purse
was located when he placed the gun in the purse, the extent of the
group’s drug manufacturing activities on December 12 and the gun’s
potential to further the group’s activities support the district
court’s conclusion that Schmalzried’s carrying of the gun and his
placement of the gun into his wife’s purse was “in relation to” the
group’s activities. See Smith, 508 U.S. at 238, 113 S. Ct. at
2059; see also Ramos-Rodriguez, 136 F.3d at 469 (upholding a
conviction under § 924(c)(1) even where it was not clear precisely
when a defendant had carried a gun because “the court is satisfied
at some point during and in relation to this drug trafficking
crime” the defendant had done so).
The government proffer and technical reports attached to the
proffer indicate that the group possessed chemicals sufficient to
manufacture 1.5 kg to 2 kg of methamphetamine. The sheer quantity
of this amount of methamphetamine also gives rise to an inference
that the group might want to have some way to protect its
investment. See United States v. Wilson, 884 F.2d 174, 177 (noting
that “the sheer volume of weapons and drugs makes reasonable the
inference that the weapons involved were carried in relation to the
predicate drug offense since they ‘increase[] the likelihood [the
drug offense will] succeed’”) (quoting United States v. Robinson,
18 857 F.2d 1006, 1010 (5th Cir. 1988)). This inference is further
strengthened by the fact))again not addressed by the majority
opinion))that other members of the group stated to government
agents that the group carried weapons “during and in relation to”
the conspiracy. When police executed a search warrant on the motel
room near which the U-Haul had been parked, Lindsey had a fully
loaded 12-gauge shotgun. She also told police that the group used
guns to protect themselves and the drugs. See United States v.
Rocha, 916 F.2d 219, 237 (5th Cir. 1990) (noting that the presence
of a gun carried by a fellow conspirator supported a finding that
defendant carried a weapon “during and in relation to” a drug
trafficking crime). Accordingly, both the amount of drugs and the
actions of other members clearly support the district court’s
inference that Schmalzried carried the gun “in relation to” the
group’s activities.
The Tenth Circuit’s decision in United States v. Lampley, 127
F.3d 1231, 1240-42 (10th Cir. 1997), cited in the majority opinion
at 6, is directly on point. Lampley and his co-defendants were
convicted by a jury of conspiracy to make explosive devices for use
against government facilities and carrying firearms “during and in
relation to” the conspiracy. Like Schmalzried, on appeal, Lampley
argued that no nexal link existed between the group’s carrying of
the firearms and the conspiracy because the group had purchased the
guns only after other persons made death threats against Lampley.
19 The Tenth Circuit concluded that, although some evidence indicated
that Lampley had bought the gun for reasons not related to the
conspiracy, a jury could have also reasonably concluded that
Lampley subsequently carried the gun “during and in relation to”
the conspiracy.
Like Lampley’s argument that the Tenth Circuit rejected,
standing alone in the face of this imposing mass of evidence
against Schmalzried is his self-serving assertion that he did not
carry the gun “during and in relation to” the manufacture of
methamphetamine or the drug conspiracy because he had given the gun
to his wife, Kelly Anne, as a result of her rape as a child.
Although I find that the above evidence both casts serious doubt on
the veracity of this assertion and suggests that the firearm could
have been used to protect the group’s activities (which Schmalzried
does not dispute and which would provide the necessary nexal link
between the carrying and the predicate drug offense), assuming,
arguendo, that his statement is true, we have held that we look not
solely to the defendant’s intent, but also to the totality of the
circumstances, in determining whether the defendant’s carrying of
the firearm was “during or in relation to” his drug trafficking
crime. See United States v. Pace, 10 F.3d 1106, 1119 (5th Cir.
1993) (collecting Fifth Circuit cases analyzing the meaning of the
phrase “during and in relation to”). When weighed against the
totality of the circumstances, I simply fail to see how the
20 district court’s choice not to credit Schmalzried’s self-serving
assertion can be viewed as clearly erroneous.
Accordingly, I respectfully DISSENT.