* 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should not be published and is not precedent except under the limited circumstances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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-50849

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ALAN LEWIS ZEDLER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(A-95-CR-104-ALL)

_________________________

July 19, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Alan Zedler appeals his conviction of, and sentence for, using

or carrying a firearm in relation to a drug-trafficking offense, in

violation of 18 U.S.C. § 924(c)(1). We vacate and remand.

I.

Zedler was charged in a seven-count superseding indictment

with drug-trafficking and firearm offenses. Pursuant to a plea
2

agreement, he pleaded guilty of conspiracy to manufacture marihuana, 21 U.S.C. § 846 (Count One), and using and carrying a

firearm during a drug-trafficking offense, 18 U.S.C. § 924(c)(1)

(Count Five). He was sentenced to serve 120 months (the statutory

minimum) for the conspiracy and to serve five years consecutively

for the firearm offense; he also received a five-year term of

supervised release. As part of the agreement, he agreed to forfeit

the real estate on which he and his wife had been growing marihuana, as well as firearms, vehicles, cash, and drug paraphernalia

found on the property.

At rearraignment, the prosecutor stated that the .45 Detonics

handgun that was the basis for Count Five was found “under a pillow

on . . . Zedler’s side of the bed in which he slept.” Eleven other

firearms “were also located at the residence.” There was no other

evidence indicating that Zedler had used or carried a firearm

relative to his drug trafficking.

II.

Zedler contends that we should reverse his conviction of the

§ 924(c)(1) violation and allow him to replead as to Count Five on

remand. He asserts that there is no evidence to sustain a

conviction of either using or carrying a firearm, as charged in

that count. Thus, he argues, there was not an adequate factual

basis for his plea on that count. Zedler also argues that FED. R.

CRIM. P. 11 was not complied with adequately.

The government agrees, observing that in Bailey v. United
3

States, 116 S. Ct. 501, 509 (1995), the Court held “that a

conviction [under § 924(c)(1)] for use of a firearm requires a

showing that the defendant actively employed the firearm during and

in relation to the predicate crime.” Accord United States v.

Andrade, 83 F.3d 729, 730-32 (5th Cir. 1996) (applying Bailey,

which was decided while Andrade’s and Zedler’s appeals were

pending). The factual basis also was insufficient to sustain a

conviction for “carrying” under § 924(c)(1), as there is no record

evidence that Zedler transported a firearm. See United States v.

Rivas, 85 F.3d 193 (5th Cir. 1996); United States v. Fike, 82 F.3d

1315, 1328 (5th Cir. 1996). Therefore, Zedler’s § 924(c)(1)

conviction and five-year sentence must be vacated. See Andrade, 83

F.3d at 731-32.

III.

The government requests us to remand so that Zedler can be

resentenced on the conspiracy count, to add two levels to Zedler’s

offense level pursuant to U.S.S.G. § 2D1.1(b)(1) because he

possessed a dangerous weapon during the conspiracy. Zedler has not

taken issue with this request.

In Andrade, the government made a similar request. This court

stated: “Although we agree remand is required, the particular

relief requested by the Government is not properly before us, and

we express no view on the appropriateness of altering the Guideline

range.” 83 F.3d at 730 n.2.

If we were to comply with the government’s request, Zedler’s
4

total offense level would be increased from 25 to 27, and his

imprisonment term range for that level, with his criminal history

category I, would be 70 to 87 months. This is considerably less

than the 120 months Zedler received as the mandatory minimum under

21 U.S.C. § 841(b)(1)(A)(vii). Accordingly, we deny the government’s request, as granting it would have no effect on the

sentence.

VACATED and REMANDED.