UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-60551

UNITED STATES OF AMERICA

VERSUS

SAMUEL RAY HALL, JR.,

Appeal from the United States District Court

for the Northern District of Mississippi

April 14, 1997

Before POLITZ, Chief Judge, and REAVLEY and DENNIS Circuit Judges.

DENNIS, Circuit Judge.

Defendant, Samuel Ray Hall, Jr., pleaded guilty to the use and

the carrying of a firearm (in relation to a drug trafficking

crime), 18 U.S.C. § 924(c)(1), and was sentenced to 60 months.

Defendant appealed directly. We vacate his conviction and sentence

and remand this case to the district court for further proceedings.

The record does not establish a factual basis for defendant’s plea

to ei ther the use or the carrying of a firearm in relation to a

drug trafficking crime. “To sustain a conviction under the “use”

prong of § 924(c)(1), the Government must show that the defendant2

actively employed the firearm during and in relation to the

predicate crime.” B ailey v. United States ,____U.S.____, 116 S.Ct.

501, 509 (1995). On the other hand, to sustain a conviction under

the “carry” prong of that statute the prosecution must show that

the firearm was transported by the defendant, or was within his

reach, during and in relation to the predicate crime. U nited

States v. Pineda-Ortuno

, 952 F.2d 98, 104 (5th Cir.), cert. denied

,

504 U.S. 928 (1992). U nited States v. Blankenship

, 923 F.2d 1110,

1116 (5th Cir.), cert. denied , 500 U.S. 954 (1991). The facts do

not show that Hall either “used” or “carried” a firearm during and

in relation to his drug trafficking crime.

BACKGROUND

Defendant -appellant, Samuel Ray Hall, Jr., was named with

DeMarco Morgan, Michlene Morgan, and Raymond Kinsey in a two-count

indictment on March 19, 1993. Count one charged Hall with aiding

and abetting the Morgans and Kinsey in the possession with intent

to distribute crack cocaine on February 11, 1993, in violation of

21 U.S.C. § 841. Count two charged Hall and the others with

knowingly and intentionally using and carrying a firearm during and

in relation to a drug trafficking cri me on February 11, 1993, in

violation of 18 U.S.C. § 924 (c)(1). In this appeal, only the use

and the carrying of the firearm count is at issue.

On August 4, 1993, Hall pleaded guilty to the use and carrying

of a firearm in relation to a drug trafficking crime. On January

6, 1994, Hall was adjudged guilty of “possession of a firearm

during the commission of a drug trafficking crime” in violation of3

18 U.S.C. §924(c)(1) and sentenced to 60 months imprisonment to be

served consecutively with his predicate offense sentence. In this

direct appeal, Hall challenges the conviction and sentence based on

his guilty plea to using and carrying the firearm in violation of

the statute.

STANDARD OF REVIEW

“An acceptance by the district court of a guilty plea is a

factual finding reviewable under the clearly erroneous standard.”

United States v. Briggs , 920 F.2d 287, 293 (5th Cir. 1991)(citing

United States v. Oberski

, 734 F.2d 1030, 1031 (5th Cir. 1984); see

also United States v. Dayton , 604 F.2d 931 (5th Cir. 1979), cert.

denied , 445 U.S. 904 (1980).

ANALYSIS

The statute at issue, 18 U.S.C. § 924(c)(1), in pertinent

part, provides that:

Whoever, during and in relation to any crime of violence

or drug trafficking crime

. . . uses or carries a

firearm , shall, in addition to the punishment provided

for such crime of violence or drug trafficking crime, be

sentenced to imprisonment for five years....

The only source from which the trial court determined that

there was a factual basis for Hall’s plea of guilty to a violation

of § 924(c)(1) was the Government attorney’s statement:

In early February, 1993, agents with t he Lowndes County

Sheriff’s Department Narcotics Division received information

from different sources of a group in town from Florida who

were involved in selling crack cocaine in the area and were located at a mobile home in the area. On February 11, 1993,

the agents executed a search warrant at 1322 Mike Para Road

for a trailer located on lot 55. That’s a mobile home. And

in the mobile home they found four persons, the defendants in

this case, Demarco Morgan, Michlene Mo rgan, Samuel Hall and

Raymond Kinsey. In the mobile home the agents found4

approximately 323.4 grams of cocaine base, which is also known

as crack cocaine. Most of the cocaine was on a coffee table

in the living room and on the floor beside the coffee table.

A couple packages of the cocaine were located in a bedroom on

the floor beside a bed in which Raymond Kinsey was located.

At the time the agents entered the residence, Demarco Morgan

and Samuel Hall were in the living room where the cocaine was

located. Michlene Morgan was in a different bedroom. Cocaine

residue was found in two beer cans and also on razor blades at

the location of the coffee table. The agents will testify

that the razor blades are commonly use [sic] to cut up rock

cocaine into smaller rocks for distribution. And in fact,

when the agents entered the residence a quantity of the

cocaine was packa ged up in small rocks and another quantity

there at the coffee table had not yet been cut up. And the

razor blades and other implements for cutting up the cocaine

were located ther e, and Demarco Morgan’s hands had cocaine

powder on them at the time.

The agents also received $2,064 in U.S. currency, which

was in bills that was consistent with drug trafficking scales.

They seized one set of Old House Scales, which are commonly

used for weighing drugs for dis tribution. They also seized

three boxes of plastic bags of the type used to package

cocaine and the type that was found in the residence in which

cocaine was packaged and repackaged. They found two pagers,

one box of single edge razors, eight plastic bags containing

cocaine and residue.

Inside th ey also found two firearms. A Cobra 9

millimeter caliber semiautomatic pistol with the serial number

described in the indictment. That was on the floor within a

few feet of the coffee table where the quantity, vast majority

of the cocaine base was located. In the bedroom in which

Raymond Kinsey was located, the officers found a 7.62 caliber

MAK .90 Sporter semiautomatic rifle of the serial number

described in the indictment. It was laying on the bed in that

bedroom. Next to the bed on the floor was also a quantity of

cocaine. Raymond Kinsey was found in that room and he was

zippered [sic] up inside a suitcase where he was attempting to

hide from the officers.

The firearms were readily available to the occupants of

the trailer and they could be easily accessible to protect the

drugs, the drug proceeds, and to protect the drug trafficking

operation from the rip offs and from law enforcement officers.

To show intent and knowledge, the government would also

show that on March 3, 1993, approximately a month after their

search, one ounce, approximately one ounce of cocaine base was

seized from Raymond Kinsey and Demarco Morgan in Jacksonville,

Florida, in the car that they were stopped by law enforcement

officials. Kinsey attempted to run and was apprehended, and

he had the approximately one ounce of cocaine base on him.

Demarco Morgan was in the car with him at the time they were

stopped.5 The Crime Lab in the case identified the cocaine base

seized as approximately 323.4 grams of cocaine base.

At trial, agents will testify based on their training and

experience and knowledge that cocaine in the Columbus area is

usually sold in $20 rocks. The $20 rocks generally weigh

about 1/10 of a gram, and that the 323 grams of crack cocaine

would convert into approximately 3,230 street sales of $20

rocks, which would generate an income of approximately

$64,000.

On April 4, 1993, while in jail in Jacksonville, Florida,

after h is arrest down there, Raymond Kinsey asked to speak

with and waived his Miranda rights and was interviewed by the

Sheriff’s office and the FBI. Raymond Kinsey told the FBI

that he first saw Demarco Morgan and Samuel Hall with cocaine

around October 1992. He saw them break crack cocaine cookies

into smaller pieces for resale. Also he stated that Hall and

Demarco Morgan obtained crack from a person in Sa n Antonio,

Texas, and he identified that person. He also stated that

while in Columbus Raymond Kinsey saw Samuel Hall bring back 8

ounces of crack cocaine to Demarco Morgan, and that Samuel

Hall brought it back from his source in Texas.

On the date of the seizure in this case, February 11,

1993, Michlene Morgan gave the officers a signed statement.

She stated that she knew that her husband, Demarco Morgan, had

been dealing cocaine for about three months. She stated that

in mid January, 1993, Raymond, who is Raymond Kinsey, came to

Florida, picked her up and took her to Lowndes County. While

in Lowndes County she walked into the living room of the

trailer and saw Demarco Morgan and Ra ymond with about five

sandwich bags containing rocks of cocaine.

She stated that she went ba ck to Florida, returning in

early Februar y, and she saw a pile of crack cocaine on the

coffee table while Demarco and Raymond were there with Samuel,

who [sic] she did not know Samuel’s last name. And, of

course, he was identified as Samuel Hall.

She also stated on February 11th, the date of the

seizure, just prior to the seizure, Demarco Mo rgan, Raymond

and Samuel had six or more bags of rock cocaine on the living

room coffee table. That Samuel had a bag of cocaine in his

hand and that Demarco had residue on his hand from cutting up

the rocks.

She stated that Raymond was sitting on the floor next to

the coffee table where the cocaine was located. A few minutes

later the warrant was executed. She stated that based on what

she saw and heard she knew that Demarco and Raymond and Samuel

were selling crack rock cocaine in Lowndes County. She heard

them discussing it and discussing making trips to pick up

more.

Also, too, Raymond Kinsey stated that Michlene Morgan had

gone on trips with them to pick up cocaine. That she was

taken along in hopes that that would help avoid interdiction6

on the highways by officers who are trained to profile and

stop people who are transporting drugs by vehicle.

Also, too Your Honor, I would note that the individuals

in th is case have agreed to cooperate with the government.

Demarco Morgan has already started cooperating w ith the

government as, of course, has Raymond Kinsey.

That would summarize the government’s proof, Your Honor.

After the judgment of conviction and sentence was entered

upon Hall’s guilty plea, the United States Supreme Court rendered

its decision in B ailey v. United States , ____U.S.____, 116 S.Ct.

501, 133 L.Ed.2d 472 (1995), definitively interpretin g the “use”

prong an d indirectly shedding light on the meaning of the

“carrying” prong of § 924(c)(1). Bailey’s authoritative

interpretation of § 924 (c)(1) applies retroactively to the present

case which comes before us on direct appeal. U nited States v.

Andrade

, 83 F.3d 729, 730, n.1 (5th Cir. 1996). Although a guilty

plea typically waives objection to a non-jurisdictional defect in

the proceedings below, we nevertheless consider a challenge to a

guilty plea on direct appeal on grounds that an intervening

decision establishes that a defendant’s conduct did not constitute

a crime. Id . at 731 (citing authorities).

A. Hall did not “use” the firearm.

In Bailey the Supreme Court held “that § 924(c)(1) requ ires

evidence sufficient to show an active employment of the firearm by

the defendant, a use that makes the firearm an operative factor in

relation to the predicate offense.” 116 S.Ct. at 505; and

concluded that the evidence was insufficient to support either of

the two defendants’ convictions. Id. at 509.

Roland Bailey and Candisha Robinson were separately convicted7

of federal drug offenses and of violating 18 U.S.C. § 924(c)(1).

Police stopped Bailey in his car for lack of a license plate and

s afety sticker, seized cocaine in his passenger compartment and

fou nd a loaded pistol in his locked trunk. Police executing a

search warrant at Robinson’s apartment, based on her previous sales

of crack cocaine, found an unloaded, holstered firearm locked in a

trunk in her bedroom closet. There was no evidence in either case

that the defendant actively employed the firearm in any way. The

Court of Appeals, sitting en b anc, consolidated the cases and

affirmed the convictions, applying an “accessibility and proximity”

test to determine “use” within § 924(c)(1)’s meaning, holding, in

both cases, that the gun was sufficiently accessible and proximate

to the drugs or drug proceeds that the ju ry could properly infer

that the defendant had placed the gun in order to further the drug

offenses or to protect the possession of the drugs. United States

v. Robinson , 36 F.3d 106 (D.C. Cir. 1994)( en banc ).

The Suprem e Court, in arriving at its interpretation that

§924(c)(1) firearm “use” requires that the defendant “actively

employ” the firearm as an “operative factor” in relation to the

predicate offense, considered the history and purpose of the law,

the generally prevailing meaning of its words, the context in which

the words occur, the text of the law as a whole, and other laws on

the same subject matter. The Court reasoned that Congress intended

“use” to have a more limited meaning than “mere possession” because

it had frequently used the term “possess” in gun-crime statutes to

describe prohibited gun-related conduct and easily could have done8

so in §924(c)(1). Consequently, the Court rejected the Court of

Appeals’ proximity and accessibility standard which provided almost

no limitation on the kind of possession that would be criminalized.

Instead, the Court observed that the ordinary and natural meaning

of the word “use” implies “action and implementation,” 116 S.Ct. at

506, and quoted with approval from then Chief Judge B reyer’s

dissenting opinion in United States v. McFadden , 13 F.3d 463, 467

(1st Cir. 1994)(“the ordinary meanings of the words ‘use’ and

‘carry’...connote activity beyond simple possession”).

The Bailey opinion noted other factors supporting the

ordinary, more active and limited meaning of “use”: while a broader

reading of “use” would undermine virtually any function for

“carry,” a more limited, active interpretation of “use” preserves

a meaningful role for “carries” as an alternative basis for a

charge; courts he sitate to treat statutory terms as surplusage,

especially if they describe an element of a criminal offense; there

is nothing to indicate that Congress, when it specified two types

of conduct with a firearm, “uses” and “carries,” intended that they

be understood to be redundant. On the contrary, the Court

determined th at the original version of the statute showed that

“use” and “carry” were employed with distinctly different meanings,

the original phrase, “us es to commit,” indicating that Congress

initially intended to reach the situation in which the firearm was

actively employed during commission of the crime. Although

Congress’ 1984 amendment substituted “during and in relation to”

the predicate crimes for the earlier provisions linking the firearm9

to the predicate crimes, the Court concluded that there is no

evidence to indicate a legislative intent to expand the meaning of

“use” so far as to swallow up any significance for “carry.”

For these reaso ns, the Court rejected the Government’s

argument that “use” includes having or putting a weapon anywhere

with the intention of resorting to it later if necessary to protect

drugs or drug sale proceeds. This meaning would deprive “use” of

its active connotations, render it indistinguishable from

“possession,” and leave no nonsuperfluous meaning for “carry.” The

Court found further support for its interpretation in § 924(d)(1),

which provides for the forfeiture of any firearm that is “used” or

“intended to be used” in certain crimes. The B ailey Court stated:

In that provision, Congress recognized a distinction

betwe en firearms “used” in commission of a crime and

those “intended to be used,” and provided for forfeiture

of a weapon even before it had been “used.” In §

924(c)(1), however, liability attaches only to cases of

actual use, not intended use, as when an offender places

a firearm with intent to use it later if necessary. The

difference between the two provisions demonstrates that,

had Congress meant to broaden application of the statute

beyond actual “use,” Congress could and would ha ve so specified, as it did in § 924(d)(1).

116 S.Ct. at 507.

According to Bailey

, “‘use’ certainly includes brandishing,

displaying, bartering, striking with, and most obviously, firing or

attempting to fire, a firearm.” Id. at 508. “But the inert

presence of a firearm, without more, is not enough to trigger

§924(c)(1).” Id. “If the gun is not disclosed or mentioned by the

offender, it is not actively employed, and it is not used.” Id.

Applying the precepts of Bailey v. United States

, we conclude10

that the record fails to establish a factual basis for Hall’s plea

of guilty to a violation of the “use” prong of §924(c)(1). The

f acts contained in the Government attorney’s statement, the only

source from which a factual basis could have been determined, fail

to show that Hall actively employed the firearm, or that the

firearm was an operative factor, during and in relation to Hall’s

predicate drug crime. Under the facts so stated, Hall was in the

same room as the firearm when the officers entered, and the weapon

was on the floor a few feet from the table upon which drugs and

paraphanalia were sit ting. But the facts do not show that Hall

disclosed, displayed, mentioned or actively employed the firearm in

any way. A ccord

, United States v. Blount

, 98 F.3d 1489, 1494 (5th

Cir. 1996); United States v. Andrade

, 83 F.3d 729 (5th Cir. 1996);

United States v. Fike

, 82 F.3d 1315 (5th Cir. 1996); United States

v. Wilson , 77 F.3d 105 (5th Cir. 1996).

B. Hall did not “carry” the firearm.

“Carry” as well as “use” in §924(c)(1) means more than mere

possession of a firearm during and in relation to a drug

trafficking crime. Bailey requires this conclusion by its express

statement, statutory interpretation methodology, and result.

The Court explicitly stated: “Had Congress intended

possession alone to trigger liability under §924(c)(1), it easily

could have so provided. This obvious conclusion is supported by

the frequent use of the term “possess” in the gun-crime statutes to

proscribe gun-related conduct. S ee, e.g.

, §§ 922(g), 922(j),

922(k), 922(o)(1), 930(a), 930(b).” Bailey v. United States , 11611

S.Ct. 501, 506 (1995).

In interpreting §9 24(c)(1), a court must start with the

language of the statute, giving its word s their “‘ordinary or

natural’” meaning. See Bailey , 116 S.Ct. at 506 (citing Smith v.

United States , 508 U.S. 223, 232 (1993)). The meaning of “carry”

is variously defined (within the context of carrying a physical

object) as “to move while supporting ,” “transport,” “to wear or

have on one’s person.” W E BSTER ’ S T HI RD N EW I NTERNATIONAL D ICTIONARY 343

(1961 ); see also B LACK ’ S L AW D ICTIONARY 214 (6th ed. 1990) (defining

carry as “to bear, bear about, sustain, transport, remove, or

convey. To have or bear upon or about one’s person, as a watch or

weapon; locomotion not being essential....”)

The placement and purpose of a word in the statutory scheme

including §924(c)(1) must be considered in addition to its bare

meaning. B ailey

, 116 S.Ct. at 506. “[T]he meaning of statutory

language, plain or not, depends on context.” Id

. (citing Brown v.

Gardner , 513 U.S. 115, 118 (1994)(citing King v. Vincent’s Hosp

.,

502 U.S. 215, 221 (1991))). Accordingly, the Supreme Court in

Bailey looked past the word “use” itself, read §924(c)(1) with the

assumption that Congress intended each of its terms to have

meaning, and decided that “use” and “carry” each have a

“particular, nonsuperfluous meaning.” Id

. at 506-507.

Consequently, the Bailey Court concluded that “use” cannot be read

broadly to mean “possession” because that interpretation undermines

virtually any function for “carry,” whereas a more limited, active

interpretation of “use” preserves a meaningful role for “carries”12

as an alternative basis for a charge. Id . at 507.

Therefore, “carry,” as well as “use,” must connote more than

mere po ssession of a firearm by a person who commits a drug

offense. Otherwise, “carry” would be stretched far beyond its

ordinary and natural meaning, disregarding the Congressional

penchant for using the word “possession” when that is what it

means; and “use” would not have a particular, nonsuperfluous

meaning or any meaningful role or function as an alternative basis

for a charge. Id . at 506-507.

What then must the Government show, beyond mere possession, to

establish “carry” for the purposes of the statute? Based on

decisions of this and other Circuits, the ordinary and natural

meaning of “carry,” and the Supreme Court’s statements and

reasoning in Bailey , we conclude that the prosecution, to sustain

a conviction under the “carry” prong of §924(c)(1), must show that

the firearm was transported by the defendant -- or was within his

reach -- during and in relation to the predicate crime.

In United States v. Pineda-Ortuno

, 95 2 F.2d 98, 104 (5th

Cir.), cert. denied, 504 U.S. 928 (1992), this court held that

constructive possession will support a conviction under the

“carrying” prong of §924(c)(1) when a firearm is transported in a

vehicle and the operator of the vehicle knowingly possesses the

firearm in the vehicle during and in relation to a drug trafficking

crime. S ee also United States v. M uscarello, 1 06 F.3d 636, 639

(5th Cir. 1997); United States v. Rivas

, 85 F.3d 193, 195 (5th Cir.

1996). However, the Pineda-Ortuno court explained that “in a13

nonvehicle context . . . ‘carrying’ requires a showing that the

firearm was in reach during the commission of the offense.” I d

. at

103 (citing United States v. Blankenship

, 923 F.2d 1110, 1116 (5th

Cir.), cert. denied

, 500 U.S. 954 (1991)([A] person cannot be said

to ‘carry’ a firearm without at least a showing that the gun is

within reach during the commission of the drug offense)). A ccord,

United States v. Joseph

, 892 F.2d 118, 126 (D.C. Cir. 1989)

(carrying requires a present ability to exercise dominion and

control over a firearm and that the firearm be within easy reach);

United States v. Feliz-Cordero

, 859 F.2d 250, 253 (2d Cir. 1988) (a

person cannot be said to carry without at least a showing that the

gun was within reach during the commission of a drug offense).

In Bailey v. United States

, 116 S.Ct. at 507, the Supreme

Court compared situations in which an offender could be convicted

of violating one prong of § 924 (c)(1) but not the other:

Under the interpretation we enunciate today, a firearm

can be used without being carried, e.g., when an offender

has a gun on display during a transaction, or barters

with a firearm without handling it; and a firearm can be

carried without being used, e.g., when an offender keeps

a g un hidden in his clothing throughout a drug

transaction.

In the present case, there is no factual basis from which it

reasonably can be determined that, during and in relation to his

predicate drug offense, Hall transported the firearm, had it on his

person or in his clothing, or would have been able to reach the

firearm. The facts merely show that Hall was present in the room

when the officers entered and observed the firearm on the floor a

few feet from the table. The facts do not indicate the spatial14

arrangement of Hall and the persons in the room with respect to the

gun, the tabl e or to each other. Likewise, the facts fail to

indicate who transported the gun to the trailer or moved it to its

position on the floor. Thus the facts of record conclusively rule

out the possibility that Hall had the firearm on his person or in

his clothing, and they do not show that he carried the gun in any

other way during or in relation to his predicate drug crime.

CONCLUSION

We conclude and that there is not a factual basis for Hall’s

plea of guilty to the use or to the carrying of a firearm during

and in relation to a drug trafficking crime. Our practice when a

plea has been accepted in violation of Rule 11(f) is to vacate and

remand for entry of a new plea. United States v. Briggs , 920 F.2d

287, 294-295 (5th Cir. 1991); See also, e.g.

, United States v.

Graves , 720 F.2d 821, 822, 825 (5th Cir. 1983); Sassoon v. United

States

, 561 F.2d 1154, 1159-60 (5th Cir. 1977); United States v.

Johnson

, 546 F.2d 1225, 1227 (5th Cir. 1977). Accordingly, Hall’s

guilty plea, conviction and sentence with respect to the use and

carrying of a firearm charges are VACATED and the case is REMANDED

for further proceedings.