United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 95-2132

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the District v. * of Minnesota. * Allen H. McKinney, * * Appellant. *

___________ Submitted: June 27, 1997 Filed: July 16, 1997

___________ Befor e BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRI S SHEPPARD ARNOLD, Circuit Judge.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.
Thi s case comes before us for a second time. In United States v. McKinney , 79 F.3d 105 (8th Cir. 1996), we held th at Mr. McKinney was not entitled on appeal to the benefit of the rule announced in Bailey v. United States , 116 S. Ct. 501 (1995), a
case decided after his conviction, because at trial he did not raise the legal point that Bailey subsequently decided in his favor. The Supreme Court granted Mr. McKinney's petition for certiorari in that case, vacated our judgment, and remanded the case to us for further consideration in light of Johnson v. United States , 117 S. Ct. 1544 (1997).-2-

See McKinney v. United States , 117 S. Ct. 1816 (1997). Having undertaken a further consideration of the case as directed, we reverse Mr. McKinney's conviction for using
or carrying a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1) and remand the case for resentencing.

I. In J ohnson , 117 S. Ct. at 1549, the Supreme Court decided that a court o f appeals ought to engage in "plain error" review under Fed. R. Crim. P. 52(b) with respect to legal principles not recognized at the time of the relevant tri al, but recognized before the appeal was decided, because otherwise trial counsel might well fee l obligated to make "a long and virtually u seless laundry list of objections to rulings that
wereplainly supported by existing precedent." We therefore proceed to evaluate the trial court's performance under a plain error standard.

In United Sta

tes v. Olano , 507 U.S. 725, 734 (1993), on which Johnson relied, the Court held that to prevail on a claim of p lain error an appellant must first show that the error complaine d of was "clear" or "obvious." In this case, Mr. McKinney argues that the error lay in submitting the gun charge to the jury because under Bailey th e evidence was simply insufficient to convict him of "using" a weapon and because no submissible case was made that he was "carrying" one.

The ev idence bearing on the weapons charge against Mr. McKinney can b e briefly summarized. Mr. McKinney kept several guns in his heavily fortifi ed compound in a room from which he monitor ed video cameras that were placed strategically so as to allow him to observe anyone approaching his building. As the government puts it in its sup plemental brief, "the four assault weapons from the control room formed the basis for the defendant's conviction under 18 U.S.C. § 924(c)" because he wa s op erating "an armed drug fortress" on the day that he was raided. The governmen t argues that the operation of an armed fortress in and of itself amounts to a use o f weapons sufficient to satisfy the requirement of Bailey . We disagree.-3-

Befor e the decision in Bailey , we had indeed held that a person who maintains and operates an armed for

tress for selling drugs was using guns within the meaning of § 924(c). S ee , e.g. , United States v. Angell , 11 F.3d 806, 810 (8th Cir. 1993), cert

. denied , 512 U.S. 1239 (1994) , and United States v. Matra , 841 F.2d 837, 842-43 (8th Cir. 1988). The rule of these cases, however, cannot survive the holding in Bailey , which requires a showing that a weapon was actively deployed before it can be said to have b een used within the meaning of the relevant statute. The Court remarked i n Bailey , 116 S. Ct. at 505-06, that the statement "I use a gun to protect my house, but I've never had to useit" (emphasis in original) demonstrate d two different usages of the relevant wo rd, but, the Court held, only the second, more specific of the two kinds of use fell within the reach of the statute. We thus b elieve that the government's evidence in this case, as the government itself characterized it, did not make out a submissible
case on the question of whether Mr. McKinney used a gun within the meaning o f § 924(c), because the government relies on the mere presence of weapons in a building to support the conviction. Nor can we say that the evidence in this case was sufficient to support a
con victionfor carrying a weapon. Though the Court in Bailey did not reach th e question of the meaning of the wor d "carry" in § 924(c), our court has had occasion to consider the matter in several recent cases. In all of the cases in which we have upheld convictions for carrying guns during or in relation to a drug-trafficking offense, th e defendant has had the weapon either in a car's hatchback, in the passenger compartment of a car, or on his person, and was thus carrying the offending weapons in an obvious, literal way. See United States v. Nelson , 109 F.3d 1323, 1325 (8th Cir. 1997); United States v. Caldwell , 97 F.3d 1063, 1066 (8th Cir. 1996); United States v. Willis , 89 F.3d 1371 , 1375 (8th Cir. 1996), cert. denied , 117 S. Ct. 273 (1996); and United States v. White , 81 F.3d 80, 83 (8th Cir. 1996). Our cases haveemphasized ordinary dictionary definitions of the word "carry": We have said that it means to have on one's person, to transport, to remove, or to convey

. See , e.g. , Nelson , 109 F.3d at 1326, and White , 8 1 F.3d at 83. There is no evidence in this case that Mr. McKinney had any guns on-4-

his person, or transported or conveye d them in any way, during or in relation to a drug offense.
Having a gun available for use, even an immediate use, is simply not th e equivalent

of carrying it. If it is not being transported at some relevant time, it is not being car ried. The difference between having a gun at the ready in a building an d having one available in an automobile may, from some perspectives, seem in substantial, but the statutory line has to be drawn somewhere, else the offense of c arrying a weapon might virtu ally swallow the offense of possessing one, and Congress has drawn a distinction between the two activities. Cases o n either side of a line dividing legal acts from illegal ones, or one type of illegal activity from another, will frequently look so similar as to make the distinction drawn b etween them appear arbitrary and gratuitous. Butthat is sometimes the nature of the legal enterprise, especially when the relevan t line is a fine one. Any rule that equated carrying a gun with having it ready to han d would, we believe, not only distort the meaning of words, but, as the Supreme Court remarked in Bailey , 116 S. Ct. at 509, with respect to use of a gun, would also "create an impossible line-drawing problem. How 'at the ready' was the firearm? Within arm's reach? In the room? In the house?" This is an inquiry in which we decline to engage.

Be cause the charge against Mr. McKinney for violating 18 U.S.C. § 924(c)(1) should not have been submitted to the jury, the trial court plainly erred in doing so. II. Having concluded that the trial court erred plainly within the meaning o f Fed. R. Crim. P. 52(b) in submitting the weapons case to the jury, we must inquir e wh ether the error "affected" Mr. McKinney's "substantial rights." See id. In Olano , 50 7 U.S. at 734-35, the Supreme Court, while reserving a ruling on the question o f wheth er a plain error has to have affected the outcome of the trial before it affected a defendant's substantial rights, he ld that any error that was that prejudicial certainly did affect substantial rights. W hile in Johnson , 117 S. Ct. at 1549-50, the Court indicated-5-

apassing concern about whether the error that occurred in that case was a structura l one, wedo not read this as evidence of an intention on the Court's part to abandon or modify the

criteria established in Olano for analyzing records for plain error. Rather,
we believe t hat in Johnson the Court was concerned about whether the error there , though not prejudicial in the outcome-determinative sense, might not nevertheless have affected substantial rights because it was structural. We do not need to ask and answer th is legal question in this case, because the error here was about as obviousl y pre judicial as one could be: But for the case being submitted, Mr. McKinney had no chance whatever of being co nvicted. In other words, the error affected his substantial rights.
We think it clear as well that, as Olano and Johnson both require before we can grant relief to Mr. McKinney, the plain error here is one that gave rise to a miscarriage of justice, because it resulted in the conviction of a person who was not guilty of the
c r ime with which he was charged. The Court in Olano , 507 U.S. at 736, specifically observed that a "court of appeals should no doubt correct a plain forfeited error tha t
caus es the conviction or sentencing of an actually innocent defendant." This lega l principl e has, in fact, been applied in the courts of the United States for at least a hundred years. See Wiborg v. United States , 163 U.S. 632, 659-60 (1896).

III. The fact that the evidence in this case was insufficient to support a convictio n of Mr. M cKinney under 18 U.S.C. § 924(c)(1) does not mean that the weapons tha t
were seized in his building are without legal significance. To the contrary, U.S.S.G. § 2D1.1(b)(1) provides an enhancement for the possession of a gun in the course of a drug-trafficking offense.
We therefore vacate Mr. McKinney's co nviction under § 924(c) and remand the case to the district court for resentencing in accordance with the view s expressed in this opinion.-6-

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.