Wesley v. United States

927 F. Supp. 1245, 1996 U.S. Dist. LEXIS 7948, 1996 WL 312143
CourtDistrict Court, E.D. Missouri
DecidedJune 7, 1996
DocketNo. 4:96CV00388 GFG
StatusPublished
Cited by1 cases

This text of 927 F. Supp. 1245 (Wesley v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wesley v. United States, 927 F. Supp. 1245, 1996 U.S. Dist. LEXIS 7948, 1996 WL 312143 (E.D. Mo. 1996).

Opinion

ORDER

GUNN, District Judge.

This matter is before the Court on Demetress Ron Wesley’s 28 U.S.C. § 2255 motion to vacate, set aside, or correct his convictions and sentences.

Movant Demetress Wesley and Damon Journey were charged in a two-count indictment. In Count I, both were charged with possession with the intent to distribute more than fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). In Count II, both were charged with using or carrying a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). On April 15, 1992 a jury found Wesley guilty on both counts and Journey guilty on Count I but not guilty on Count II.

Based on a total offense level of 32 and a criminal history category of II, Wesley’s sentencing range on the drug offense was 135 to 168 months. (R. at 344.) On July 22, 1992, the Court sentenced Wesley to 150 months on the drug conviction and, as mandated by § 924(c), to a consecutive 60-month term for the firearm conviction. The Eighth Circuit affirmed the convictions and sentences on appeal. United States v. Wesley, 990 F.2d 360 (8th Cir.1993).

I. The Firearm Conviction

Wesley now challenges his § 924(c)(1) conviction. He argues that the § 924(c)(1) conviction must be vacated in light of Bailey v. [1247]*1247United States, — U.S.-, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The government opposes Wesley’s motion. The government’s evidence presented at trial showed the following. On October 29, 1991, local law enforcement obtained a warrant to search the three-story residence at 1337 Clara in St. Louis, Missouri. (R. at 13-15.) Officers discovered Wesley and Journey in a third-floor bedroom. Id. at 17-19. Journey was lying on a cot, and Wesley was lying on a mattress on the floor next to the cot. Id. at 18-19. Officers found a large quantity of crack cocaine in the closet. Id. at 20. Officers also recovered a .38 caliber revolver. Id. at 23. According to Detective Reed, the revolver was on the floor “within arm’s reach” of Wesley and Journey between the cot and the mattress. Id. at 23, 72. Wesley testified at trial that the gun was actually under Journey’s cot and not within arm’s reach. Id. at 244-45.

The government concedes that the evidence adduced at trial was insufficient to establish a violation of § 924(c) under the “use” prong 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). However, the government points out that Wesley was charged with using or carrying a firearm in violation of § 924(e)(1). The government argues that the evidence was sufficient to establish a violation under the “carry” prong.1

The Eighth Circuit recently explained the “carry” prong of § 924(c)(1) in a post-Bailey decision, United States v. White, 81 F.3d 80, 83 (8th Cir.1996). According to the Court of Appeals, the word “carry” should be given its “ordinary” or “natural” meaning. Id. The Court cited numerous dictionary definitions of “carry” as sources of ordinary and natural meaning:

Webster’s Dictionary defines “carry” as “to move while supporting” or “to hold, wear, or have upon one’s person.” Black’s Law Dictionary similarly defines “carry” as “[t]o have or bear upon or about one’s person,” and defines “carry arms or weapons” as “[t]o wear, bear, or carry them upon the person or in the clothing or in a pocket, for the purpose of use.”

Id. (citations omitted). “Carry” is also defined in the same dictionary used by the Eighth Circuit in White as to “sustain the weight or burden of.” Webster’s Third New International Dictionary 343 (3d ed. 1981). Similarly, “bear” is defined as “[t]o move while holding up or supporting often with effort or special care” and to “[sjustain: support or hold up without moving.” Id. at 191. In White, the Court of Appeals concluded that “in order to sustain a conviction for ‘carrying’ a firearm in violation of § 924(c)(1), the government must prove that [the defendant] bore the firearm on or about his person during and in relation to a drug trafficking offense.” White, 81 F.3d at 83.

The government maintains that by keeping the firearm at arm’s length on the floor by his mattress Wesley was “carrying” the firearm “about his person” in violation of § 924(c). The Court does not agree. The government’s argument focuses solely on the proximity of the firearm to Wesley and ignores the meaning of “carry.” The definition of “carry” ineoiporates the concept of holding or supporting the weight of a thing. Accordingly, the “carry” prong is clearly triggered if the defendant had the gun in her hands or hidden in her clothing or a purse or bag that she was holding. White, 81 F.3d at 83. “Carry” also has been construed to encompass “carrying” a firearm in a vehicle; the defendant is using the ear, like a pocket or a purse, to hold and transport the weapon. United States v. Freisinger, 937 F.2d 383, 387 (8th Cir.1991).

In this case, the gun was on the floor near Wesley. He was in no way supporting the weight of the gun on or about himself or in a vehicle. There was no evidence at trial that Wesley carried the weapon to the bedroom with the drugs. Therefore, Wesley’s § 924(c)(1) conviction and sentence must be vacated.

The government argues that if the § 924(c) conviction is vacated, then the Court [1248]*1248should resentenee Wesley for his drug trafficking offense and enhance his offense level by two for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). The Court will do so in light of United States v. Roulette, 75 F.3d 418 (8th Cir.1996) and for the reasons outlined in Alton v. United States, 928 F.Supp. 885 (E.D.Mo.1996).

II. The Drug Conviction

Wesley also challenges his drug conviction. He contends that the illegality of the firearm conviction casts doubt on the validity of the drug conviction. He maintains that because the evidence underlying the § 924(c) conviction was used to “buttress” the government’s case on the drug charge, if the § 924(e) conviction is vacated, then the drug conviction must also be vacated.

The Court will not sustain Wesley’s argument. The grounds for vacating Wesley’s firearm conviction relate to the sufficiency of the evidence in light of an intervening Supreme Court decision. In Bailey, the Supreme Court only addressed how § 924(c)(1) should be construed; it did not address criminal liability under 21 U.S.C. § 841(a)(1) and (b)(1)(C).

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Bluebook (online)
927 F. Supp. 1245, 1996 U.S. Dist. LEXIS 7948, 1996 WL 312143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wesley-v-united-states-moed-1996.