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No. 94-2263

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska

Fred A. Friend, *

*

Defendant-Appellant. *

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 Re-Submitted: September 11, 1996

 Filed: November 29, 1996

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

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LOKEN, Circuit Judge.

Fred A. Friend was convicted of methamphetamine distribution and

conspiracy offenses and of violating 18 U.S.C. § 924(c) by using and

carrying a firearm equipped with a silencer during and in relation to that

drug trafficking conspiracy. We affirmed the drug trafficking convictions,

reversed the conviction and thirty-year sentence for using a firearm with

a silencer, and remanded to the district court for entry of an amended

judgment convicting Friend of the lesser included § 924(c) offense of using

and carrying a firearm without a silencer. United States v. Friend, 50

F.3d 548 (8th Cir. 1995). The Supreme Court then decided Bailey v. United

States, 116 S. Ct. 501 (1995), which significantly 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 consideration

in light of Bailey. Friend v. United States, 116 S. Ct. 1538 (1996). We

invited the parties to submit supplemental briefs, heard additional

argument, and now reverse the § 924(c) conviction.
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The initial issue on remand is whether Friend waived Bailey issues

at trial and in his initial appeal. The Government argues that he did,

relying on United States v. McKinney, 79 F.3d 105 (8th Cir. 1996). In

McKinney, a direct appeal submitted but not decided when Bailey was

published, we held that the issue was waived because defendant "did not

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 argued on appeal that the evidence was insufficient to sustain the

§ 924(c) conviction. Therefore, Bailey issues have been preserved. See

United States v. Willis, 89 F.3d 1371, 1378 n.3 (8th Cir. 1996); United

States v. Webster, 84 F.3d 1056, 1065 n.6 (8th Cir. 1996).

Turning to the merits, police found the handgun and silencer hidden

with a large quantity of drugs and cash in a secret safe at the home of

Gary Apker, the lead conspirator. In its initial appeal brief, the

government argued, "The location of the gun and silencer with the stash of

illegal drugs and money was sufficient evidence from which a jury could

infer that the gun and silencer were intended for protection and use in

case of an emergency." Applying familiar conspiracy principles, we

reversed the § 924(c) conviction because Apker's use of a silencer was not

reasonably foreseeable to conspirator Friend. But we also concluded that

the government's § 924(c) storage theory was consistent with pre-Bailey

Eighth Circuit cases, the evidence was clear that Apker stored the firearm

with his stash of money and drugs, and this use of a firearm -- minus the

silencer -- was reasonably foreseeable to Friend. Therefore, we directed

entry of an amended judgment convicting Friend of a lesser-included

§ 924(c) offense. See 50 F.3d at 552-54.

The Supreme Court rejected the government's storage theory in Bailey.

The Court held that a defendant cannot be convicted for use of a firearm

under § 924(c)(1) "merely for storing a weapon
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near drugs or drug proceeds. . . . If the gun is not disclosed or mentioned

by the offender, it is not actively employed, and it is not 'used.'" 116

S. Ct. at 508. The Court remanded so that we could reconsider our lesserincluded offense decision under Bailey.

On remand, Friend argues that the trial evidence was insufficient to

convict him of any § 924(c) violation. He asserts, and the government does

not dispute, that the trial record contains no evidence that any

conspirator ever actively employed this firearm, indeed, no evidence that

any firearm was ever actively used or carried during and in relation to

this conspiracy. Thus, although Bailey was not a conspiracy case, and

proper application of its "actively employed" standard to drug conspiracies

may not always be easy, here the government only proved that this

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 of

§ 924(c) and that Friend was convicted of "using and carrying a firearm"

during and in relation to the drug conspiracy. However, the government

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 remand for further examination of the "carry" issue. In these

circumstances, we conclude that the evidence was legally insufficient to

sustain the conviction 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, the

Guidelines preclude application of this enhancement if the defendant is

convicted of violating § 924(c). See U.S.S.G. § 2K2.4, comment. (backg'd).

Therefore, when a § 924(c) conviction is reversed on appeal, the district

court
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should be given the opportunity on remand to consider whether to impose a

§ 2D1.1(b)(1) enhancement. 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 resentencing

on those Counts. In all other respects, the judgment of the district court

is affirmed.

A true copy.

Attest:

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