___________ No. 94-2263

___________ United States of America, * * Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska Fred A. Friend, * * Defendant-Appellant. *

___________ Re-Submitted: September 11, 1996 Filed: November 29, 1996

___________ Before MAGILL, JOHN R. GIBSON, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.

Fred A. Friend was convicted of methamphetamine distribution an d cons piracy offenses and of violating 18 U.S.C. § 924(c) by using an d carrying a firearm equipped with a silencer duri ng and in relation to that drug trafficking conspiracy. We affirmed the drug trafficking convictions , reversed the convicti on and thirty-year sentence for using a firearm with
a silencer, and remanded to the district court for entry of an amende d judgment convicting Friend of the lesser included § 924(c) offense of usin g and carry ing a firearm without a silencer. United States v. Friend , 5 0 F.3d 548 (8th Cir. 1995). The Supreme Court the n decided Bailey v. United States , 116 S. Ct. 501 (1995), which significant ly narrowed the definition of "use" under § 924( c). That Court granted Friend's petition for a writ of certiorari, vacated our judgment, and remanded for further consideratio n in light of Bailey
. Friend v. United States , 116 S. Ct. 1538 (1996). We invit ed the parties to submit supplemental briefs, heard additiona l argument, and now reverse the § 924(c) conviction.

### -2- The init ial issue on remand is whether Friend waived Bailey issue s at tria l and in his initial appeal. The Government argues that he did , relying on United States v. McKinney , 79 F.3d 105 (8th Cir. 1996). I n McKinney , a direct appeal submitted but not decided when Bailey wa s published, we held that the issue was waived because defendant "did no t argue in his initial appeal brief that his conviction for using firearms was in any way infirm ." 79 F.3d at 109. Here, by contrast, Friend moved for acquittal at the close of the government's case in the district court and a rgued on appeal that the evidence was insufficient to sustain th e § 924(c) conviction. Therefore, Bailey issues have been preserved. See United St ates v. Willis , 89 F.3d 1371, 1378 n.3 (8th Cir. 1996); Unite d States v. Webster , 84 F.3d 1056, 1065 n.6 (8th Cir. 1996). Turning t o the merits, police found the handgun and silencer hidden wit h a large quantity of drugs and cash in a secret safe at the home o f Gary Apke r, the lead conspirator. In its initial appeal brief, th e government argued, "The location of the gun and silencer with the stash of illegal drugs and money was sufficient evidence from which a jury coul d infer tha t the gun and silencer were intended for protection and use i n case o f an emergency." Applying familiar conspiracy principles, w e reversed the § 924(c) conviction because Apker's use of a silencer was not reasonably foreseeabl e to conspirator Friend. But we also concluded that the go vernment's § 924(c) storage theory was consistent with pre- Baile y Eighth Circuit cases, the evidence was clear tha t Apker stored the firearm with his stash of mon ey and drugs, and this use of a firearm -- minus the silencer -- was reaso nably foreseeable to Friend. Therefore, we directed entry of an amended judgment convicting Friend of a lesser-include d § 924(c) offense. See 50 F.3d at 552-54. The Supreme Court rejected the government's storage theory in B ailey
. The Court held that a defendant cannot be convicted for use of a firearm under § 924(c)(1) "merely for storing a weapon

### -3-

near drugs or drug proceeds. . . . If the gun is not disclosed or mentione d by the offender, it i s not actively employed, and it is not 'used.'" 116 S. Ct. at 508. The Court remanded so that we co uld reconsider our lesserincluded offense decision under Bailey
. On remand, Friend argues that the tr ial evidence was insufficient to convict him of any § 924(c) violation. He asserts, and the government doe s no t dispute, that the trial record contains no evidence that an y conspirator ever acti vely employed this firearm, indeed, no evidence that any firea rm was ever actively used or carried during and in relation t o this conspiracy. Thus, although Bailey was not a conspiracy case, an d proper application of its "actively employed" standard to drug conspiracie s may not always be easy, here the government only proved that thi s conspiracy stored a weapon with its hoard of drugs and cash. Under Bailey , that is plainly insufficient "use."

We further note that Bailey concerned only the "use" prong o f § 924(c) and that Friend was convicted of "using and carrying a firearm" during and in relation to the drug conspiracy. However, the governmen t does not suggest how the trial evidence could support a conviction under either prong of § 924 (c) after Bailey , and in particular does not urge us to reman d for further examination of the "carry" issue. In thes e circumstances, we conclude that the evidence was legally insufficient to sustain the convictio n of a lesser included § 924(c) offense. See United States v. Thomas , 93 F.3d 479, 488 (8th Cir. 1996). A defendant who is acquitted of a § 924(c) violation may nonetheless be subject to a two-level upward sentencing enhancement under U.S.S.G. § 2D1.1(b)(1). See Bailey , 116 S. Ct. at 509. To avoid double counting, th e Guidel ines preclude application of this enhancement if the defendant i s convicted of violating § 924(c). See U.S.S.G. § 2K2.4, comment. (backg'd)
. Therefore, when a § 9 24(c) conviction is reversed on appeal, the district court

### -4-

should be given the o pportunity on remand to consider whether to impose a § 2D1.1(b)(1) enhance ment. See United States v. Rehkop , 96 F.3d 301, 306 (8th Cir. 1996); Thomas , 93 F.3d at 488. Accordingly, the judgment of the district court convicting Fred A
. Friend of Count IX of the indictment is reversed . The sentence imposed on Counts I through VIII is vacated, and the case is remanded for resentencin g on those Counts. In all other respects, the judgment of the district cour t is affirmed.
A true copy.

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