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UNITED STATES v. CORBETT

August 6, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
STEVEN Q. CORBETT, Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of defendant Steven Q. Corbett ("Corbett") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the motion is denied.

 I.

 Corbett moves the court to vacate his conviction under 18 U.S.C. § 924(c)(1) for the "use or carrying" of a firearm while committing drug trafficking crimes. Corbett was charged with conspiracy to distribute cocaine, possession of 1,003 grams of cocaine with intent to distribute, and the use or carrying of a nine-millimeter semi-automatic handgun and a .38 caliber handgun during and in relation to the commission of drug trafficking crimes, the sole count at issue in the instant motion. At trial, the Government introduced evidence that Corbett and four other defendants arranged and eventually sold to an undercover police officer over three kilograms of cocaine. All five defendants took part in the sale, which took place in a McDonald's parking lot. After one of the defendants tendered the bag of cocaine to the undercover officer, all five defendants, including Corbett, were arrested. Corbett and another defendant were seated inside a Pontiac 3000 automobile at the time of the arrests. Corbett was in the driver's seat. The arresting officers removed Corbett from the car and proceeded to search the car. During the search, the officers recovered two fully-loaded handguns.

 One of the handguns, a nine-millimeter Smith & Wesson, was found in an open black case. The black case was located on the driver's side floorboard area. The other handgun, a fully-loaded Charter Arms revolver, was found on the passenger seat in a leopard-skin case.

 After an eight-day trial, the court instructed the jury, with respect to the "use or carrying a firearm" count, as follows:

 
To use or carry a firearm during and in relation to the offense[s] [charged in the other counts] of the indictment, it is not necessary for the government to prove that the defendant in question fired, brandished or otherwise displayed a firearm. So long as the defendant in question knowingly possessed the firearm during the course of the offense[s] [charged in the other counts] to facilitate, or with any potential to facilitate, the commission of the offense, then you may find that the defendant used or carried the firearm in relation to that offense.

 Neither Corbett nor his attorney objected to the instructions. The jury returned guilty verdicts on all three counts, including the "use and carrying a firearm" count. The court ordered concurrent prison sentences of sixty months for each of the former counts, and an additional consecutive mandatory sentence of sixty months for the latter count.

 Corbett appealed to the Seventh Circuit, and both the judgment and sentence were affirmed. Corbett filed, and the court later denied, a motion brought pursuant to 28 U.S.C. § 2255. Approximately four months later, Corbett filed the instant motion, his second under § 2255.

 II.

 Section 924(c)(1) of Title 18 of the United States Code states: "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 . . . ." 18 U.S.C. § 924(c)(1) (emphasis added). As such, a defendant can be convicted for a violation of the section if he is found to either "use" or "carry" a firearm while in the commission of a drug trafficking crime. Id.

 A defendant "uses" a firearm when he "actively employs" the firearm in the commission of the offense. Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501, 505 (1995). *fn1" "The active-employment understanding of 'use' certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." 116 S. Ct. at 508. "Even an offender's reference to a firearm in his possession could satisfy § 924(c)(1)." Id. However, "use" does "not extend to encompass" an action "where an offender conceals a gun nearby to be at the ready for an imminent confrontation." Id. The definition of "carry" is distinct from the term "use"; a defendant "carries" a gun when he possesses and transports it within ...


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