UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-10400

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHARLES ADOLPH KUBOSH,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

August 7, 1997

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, HIGGINBOTHAM, and PARKER, Circuit Judges.

PER CURIAM:

In United States v. Kubosh, 63 F.3d 404 (5th Cir. 1995), we

affirmed a sentence enhancement based on narcotics possession

offenses. The Supreme Court subsequently vacated that opinion and

remanded for further consideration in light of Bailey v. United

States, 516 U.S. __, 116 S. Ct. 501 (1995). Kubosh v. United

States, 116 S. Ct. 1012 (1996).

In his notice of appeal from the district court to this court,

Kubosh stated that he appeals "from the judgment of conviction and

sentence in this matter." In his brief to this court, however,

Kubosh's statement of issues and argument contained references only
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to sentencing enhancement matters. Kubosh did not challenge the

underlying convictions in this case.

On petition for a writ of certiorari, Kubosh contended, for

the first time, that the evidence was not sufficient to support his

conviction of using or carrying a firearm during and in relation to

a drug trafficking offense, in violation of 18 U.S.C. § 924(c), and

that the jury instructions regarding that count were erroneous.

Because Kubosh failed to challenge his conviction under §

924(c) in the district court, this court is limited to reviewing

his conviction for plain error. United States v. Knowles, 29 F.3d

947, 950 (5th Cir. 1994) (citing Fed. R. Crim. P. 52(b) ("Plain

errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.")).

The Supreme Court has recently clarified an appellate

court's power under Rule 52(b) "to correct errors that

were forfeited because not timely raised in the District

Court." United States v. Olano, 113 S. Ct. 1770, 1776

(1993). In Olano, Justice O'Connor explained that an

appellate court may exercise its authority under Rule

52(b) only if there is an "error," and the error is

"plain," and the plain error affects "substantial

rights." Id. at 1777-78. "Deviation from a legal rule

is 'error' unless the rule has been waived." Id. at

1777. An error is "plain" if it is "clear" or "obvious."

Id. Finally, in most cases, a plain error affects

"substantial rights" when it is "prejudicial." In other

words, it must affect "the outcome of the District Court

proceedings." Id. at 1778. Once these conditions have

been met, Rule 52(b) gives the Court of Appeals the

discretion to correct errors not brought to the attention

of a District Court. The Supreme Court has instructed us

on how to exercise this discretion: the Court of Appeals

should "correct a plain and forfeited error affecting

substantial rights if the error 'seriously affect[s] the

fairness, integrity or public reputation of judicial

proceedings.'" Id. at 1779 (quoting United States v.

Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L.

Ed. 555 (1936)).
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Knowles, 29 F.3d at 950-951 (footnote omitted).

In Bailey, the Supreme Court rejected this Circuit's

interpretation of what constituted "use" under § 924(c). In the

instant case, the district court instructed the jury in accordance

with the now-rejected Fifth Circuit law:

The government is not required to prove that the

defendant actually fired the weapon or brandished it at

someone in order to prove "use," as that term is used in

these instructions. However, you must be convinced

beyond a reasonable doubt that the firearm played a role

in or facilitated the commission of a drug offense. In

other words, you must find that the firearm was an

integral part of the drug offense charged.

In Bailey, the Court held that a conviction for use of a

firearm requires a showing "that the defendant actively employed

the firearm during and in relation to the predicate crime."

Bailey, 116 S. Ct. at 509. Kubosh was arrested at his residence

immediately after a controlled delivery of chemicals to that

address. The three firearms that he was charged with “using” were

discovered during a search of a different residence on that same

date. There was no evidence that Kubosh actively used or employed

the firearms. Therefore, the factual basis for Kubosh's § 924(c)

conviction is insufficient, under Bailey, to support a conviction

for use of a firearm in relation to the predicate drug offenses. 

Basing a conviction on an improper interpretation of a statute

is both "plain" and an "error" as Olano defines those terms. See

Knowles, 29 F.3d at 951. Furthermore, the conviction affected

Kubosh's "substantial rights" because the district court sentenced

him to five consecutive years for the § 924(c) conviction. It is

of no consequence that Bailey was decided after the proceedings in
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the district court concluded. Johnson v. United States, 117 S. Ct.

1544, 1549 (1997)( holding “where the law at the time of trial was

settled and clearly contrary to the law at the time of appeal[,] it

is enough that an error be ‘plain’ at the time of appellate

consideration.”). We therefore vacate Kubosh's conviction and

sentence for violating § 924(c) and remand for resentencing.

We again reject Kubosh's other contentions on appeal, for the

reasons stated in our prior opinion. See Kubosh, 63 F.3d at 404.

VACATED IN PART, AFFIRMED IN PART, and REMANDED FOR

RESENTENCING.