IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30591

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellant, 

versus

FRANK J. MUSCARELLO, 

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Louisiana

February 13, 1997

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges. 

PER CURIAM: 

In this direct criminal appeal, the government asks us to

reverse the district court’s dismissal of one count in a multicount indictment to which Defendant-Appellee Frank J. Muscarello

had pled guilty. Count Three charged Muscarello with knowingly

using and carrying a firearm in relation to a drug-trafficking

offense, in violation of 18 U.S.C. § 924(c)(1). Based on the

presentence report (PSR), the court dismissed Count Three, to which

Muscarello had already pled guilty and on which he had already been

convicted. Agreeing with the government that the district court
 

1 116 S.Ct. 501 (1995). 

 

2 Notwithstanding Muscarello’s argument to the contrary, it

is of no moment that the indictment charged that Muscarello carried

“and” used a firearm rather than that he carried “or” used a

firearm. See United States v. Pigrum, 922 F.2d 249, 253 (5th

Cir.), cert. denied, 500 U.S. 936 (1991) (a disjunctive statute may

be pleaded conjunctively and proved disjunctively). 

2

erred in dismissing the firearms count, we reverse and remand for

further proceedings consistent with this opinion. 

I

FACTS AND PROCEEDINGS

Pursuant to a plea agreement, Muscarello pleaded guilty in May

1995 to drug charges and to “using and carrying” a firearm in

relation to those crimes. The factual basis for the guilty plea,

which was signed for approval by Muscarello’s attorney, established

that “[l]ocated inside the glove compartment of the Defendant

Muscarello’s Ford truck was a loaded firearm which the Defendant

knowing [sic] possessed in his vehicle and carried for protection

in relation to the above described drug trafficking offense”

(emphasis added). Muscarello did not object to the factual basis

supporting his convictions. 

After Muscarello was thus convicted but prior to his being

sentenced, the United States Supreme Court rendered its decision in

Bailey v. United States,

1 significantly narrowing the “use” facet

of § 924(c) (but not addressing the “carrying” facet). This

prompted Muscarello to file a motion under Fed. R. Crim. P.

12(b)(2) to quash or dismiss the firearm count.2 After holding a

hearing on Muscarello’s motion, the district court granted it,
3

dismissing and quashing Count Three. In so doing, the district

court chose no longer to credit the factual basis presented by the

government and concurred in by Muscarello, but instead to switch

its reliance exclusively to the following two paragraphs from

Muscarello’s post-conviction PSR: 

As to the weapon, Muscarello does not deny his possession

of the pistol. The pistol was in the glove compartment

of his truck where it had been for a long period of time.

He denies any conscious decision to carry the gun in

relation to the marijuana sale, and stated that he

carried in relation to his job with the Tangipahoa Parish

Sheriff’s office as balif [sic] at the courthouse in

Amite. 

. . . . 

In 1954, [Muscarello] became constable of the 6th Ward of

Tangipahoa Parish, a mostly rural area that included the

farming community of Tickfaw. He held this position

until 1958. In 1957 Tickfaw was incorporated, and

Muscarello was elected Chief of Police in the town. He

maintained both positions until his term as constable

expired in 1958. Muscarello was the Chief of Police in

Tickfaw until his retirement in 1987. From 1987 until

his arrest on December 8, 1994, he was employed with the

Tangipahoa Parish Sheriff’s office, working as a bailiff

in the 21st Judicial District Courthouse, Amite,

Louisiana. 

The court stated that “[t]he equities herein favor

[Muscarello]” and concluded that Muscarello “did not knowingly

possess in relation to a drug-trafficking crime,” but that “[t]o

the contrary, defendant, his employment background considered,

knowingly possessed in the glove compartment of his vehicle in

furtherance of his job requirements and not for active employment

in the charged transaction.” 

The government moved for reconsideration but the district

court denied that motion despite its acknowledgment that
 

3 We have jurisdiction under 18 U.S.C. § 3731, which permits

the government to appeal from “an order of the district court

dismissing an indictment . . . as to any one or more counts[.]” See

United States v. Mann, 61 F.3d 326, 330-31 (5th Cir.), cert.

denied, 116 S.Ct. 434 (1995). Section 3731 gives the government 30

days in which to appeal, and here the government’s motion to

reconsider was filed within the 30-day period, extending the time

in which to appeal and thus recommencing the running of the 30-day

period on the date the government’s motion was denied. United

States v. Brewer, 60 F.3d, 1142-1143 (5th Cir. 1995). 

 

4 18 U.S.C. § 924(c). 

4

Muscarello, “in the guilty plea colloquy, [had] acquiesced in and

admitted to the government’s factual basis[.]” The court went on to

note that “this [was] a pre-Bailey composition by the government

and a pre-Bailey consideration by defendant and his counsel.” The

court then quoted the foregoing paragraphs from Muscarello’s PSR

again, and repeated the conclusion that Muscarello “did carry a

firearm in a locked glove compartment of his vehicle, but not in

relation to the commission of a drug-trafficking crime.” The case

is before us for review by virtue of the government’s timely filing

of a notice of appeal.3 

II

ANALYSIS

To support a conviction under § 924(c), the evidence must

prove that the Defendant (1) used or carried a firearm, (2) during

and in relation to a drug-trafficking offense.4 The government

concedes that, after Bailey, the evidence in the instant case will

not support a conviction for use under § 924(c). The government

nevertheless contends that, as Bailey did not address the carrying

facet of § 924(c), our prior jurisprudence on carrying remains
 

5 85 F.3d 193, 195 (5th Cir. 1996), petition for cert. filed,

(U.S. Nov. 5, 1996) (No. 96-6558). 

 

6 Id. (quoting United States v. Pineda-Ortuno, 952 F.2d 98,

104 (5th Cir.), cert. denied, 504 U.S. 928 (1992). 

5

applicable, and the factual basis is more than sufficient to

support Muscarello’s conviction for carrying the firearm. We

agree. Our recent decision in United States v. Rivas recognizes

that Bailey does not alter our prior precedent analyzing the

“carrying” facet of § 924(c), at least when the gun is possessed in

a motor vehicle.5 Consequently, “the `carrying’ requirement of

§ 924(c) is met if the operator of the vehicle knowingly possesses

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

trafficking crime.’”6 Although none question that (1) the

possession element of the carrying facet of § 924(c) was met by the

uncontested fact that Muscarello knowingly possessed a loaded

pistol in the glove compartment of his truck, or (2) the gun was

thus possessed “during” the commission of the drug-trafficking

crime, the district court determined on the basis of the PSR that

the “in relation to” element was not present. We conclude that the

district court clearly erred in this determination, and did so as

a result of two errors of law. First, the district court erred

in discrediting and disregarding the factual basis concurred in by

Muscarello, by characterizing it as a “pre-Bailey composition by

the government and a pre-Bailey consideration by Defendant and his

counsel.” Although that might be a valid legal basis for

disregarding the factual basis as to the use facet of § 924(c), it

is a legal non sequitur when the carrying facet is under scrutiny.
 

7 952 F.2d 98 (5th Cir.), cert. denied, 504 U.S. 928 (1992).

 

8 Id. at 104. 

6

It follows that the court’s disregard of the factual basis was

legal error. Second, the court erred in relying on Muscarello’s

post-conviction self-serving declaration to the probation officer,

recounted in the PSR, regarding his subjective intent in possessing

the pistol in the truck that he used in facilitating his illicit

drug trafficking. Under the circumstances of this case, the court

should not have allowed the PSR to supplant the formal plea

agreement, given the defendant’s knowing and voluntary concurrence,

and that of his counsel, in the clear and unambiguous factual basis

for that plea. 

III

CONCLUSION

The Supreme Court decision in Bailey addressed the use facet

of § 924(c) but did not address the carrying facet. Although

Bailey indirectly heightened the focus on the carrying facet of

§ 924(c) by narrowing the use facet, it did nothing to invalidate

our pre-Bailey “carrying” jurisprudence, at least as to those

instances of drug trafficking that involve the use of motor

vehicles in which firearms are possessed. We recognized in United

States v. Pineda-Ortuno7 that “[w]hen a vehicle is used, `carrying’

takes on a different meaning from carrying on a person because the

means of carrying is the vehicle itself.” Thus, for example, the

fact that the glove compartment was locked does not prevent

conviction.8 This is not to say, however, that every time a gun is
7

knowingly possessed in a vehicle and the vehicle is used during and

in relation to the commission of a drug-trafficking crime, the

firearm is, as a per se matter of law, carried in relation to a

drug-trafficking offense for purposes of § 924(c). Albeit a

rarity, it is at least conceivable for such a vehicle-contained gun

to be carried “during” but not necessarily “in relation to” the

offense. 

When, as here, the defendant knowingly possesses a firearm in

a motor vehicle and uses the vehicle during the commission of the

underlying crime, then as a matter of law the firearm is carried

during a drug-trafficking offense for purposes of § 924(c). It

matters not that the government confected the factual basis in the

instant case before the decision in Bailey, or that Muscarello’s

knowing and voluntarily agreement with the accuracy of the factual

basis predated Bailey. Neither does it matter that, according to

the PSR, Muscarello subjectively intended to possess the firearm in

connection with his bailiffing job and not in connection with his

drug-trafficking crime when he has already knowingly and

voluntarily signed on to a plea agreement with a factual basis that

expressly includes the “in relation to” element. 

The district court erred both in disregarding the factual

basis for Muscarello’s guilty plea and in relying on the content of

the PSR regarding Muscarello’s subjective intention. As this

reliance led the district court to err in dismissing Count Three of

the indictment, we (1) reverse that dismissal, (2) reinstate Count

Three of the indictment and Muscarello’s conviction thereon
8

pursuant to his guilty plea, (3) vacate the sentence imposed to the

extent that Muscarello’s guilt on the firearms charge was not

considered in calculating the sentence, and (4) remand the case to

the district court for reimposition of Muscarello’s conviction on

Count Three and for resentencing. In so doing, we observe that

what constitutes “carrying” under § 924(c) when the firearm is

possessed in the motor vehicle differs substantially from what

constitutes carrying a firearm in a non-vehicle situation. Thus

our pronouncements today regarding carrying a firearm should not be

applied in a non-vehicle situation without closely scrutinizing the

effects of this distinction and questioning charily whether our

vehicle case jurisprudence is properly applicable to a non-vehicle

case, and vice versa. 

DISMISSAL REVERSED; DISMISSED COUNT AND CONVICTION THEREON

REINSTATED; SENTENCE VACATED; and CASE REMANDED for resentencing.