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UNITED STATES v. BARRAZA-MURILLO

November 26, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE BARRAZA-MURILLO, Defendant.



The opinion of the court was delivered by: KOCORAS

 CHARLES P. KOCORAS, District Judge:

 This matter is before the court on the petitioner's motion to reduce, vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, this motion is denied.

 BACKGROUND

 This motion stems from a guilty plea by petitioner Jose Barraza-Murillo ("Barraza-Murillo") to a charge of using or carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). On March 2, 1992, the morning of his scheduled trial, Barraza-Murillo plead guilty to three counts of the indictment against him: conspiracy to possess with intent to distribute cocaine, possession with intent to distribute seven kilograms of cocaine, and the § 924(c)(1) charge. On June 16, 1992, he was sentenced to ten years in prison for the first two counts and to an additional mandatory five year consecutive term of imprisonment for the § 924(c)(1) violation. On August 12, 1996, Barraza-Murillo filed this present motion to vacate his sentence. See Government's Response to Defendant's Motion at 1-2.

 The following facts are taken from the government's brief and summarize the evidence which the government was prepared to present against Barraza-Murillo and the other defendants at trial. The indictment against Barraza-Murillo also was brought against several other defendants (collectively "defendants"), including Jose Jimenez-Zarate ("Jimenez Zarate"). It charged the defendants with, among other offenses, conspiring together to possess, transport, and sell at least fifteen kilograms of cocaine.

 On September 6, 1991, Barraza-Murillo was contacted by an informant for the Drug Enforcement Administration ("DEA"), the purpose of which was to negotiate the purchase of six kilograms of cocaine. After several discussions, Barraza-Murillo told the informant that he would be able to produce the required amount, and they agreed to meet on September 12 to consummate the deal. The parties met at the appointed place and time, but Barraza-Murillo's source did not arrive and the deal had to be postponed.

 On September 17, after several more conversations with Barraza-Murillo, the informant and his partner met with Barraza-Murillo on the street outside of Barraza-Murillo's Chicago apartment. They, along with the other defendants, proceeded to another location where the deal was to be consummated. However, waiting at that location were DEA agents, who promptly arrested all of the defendants. At the time of his arrest, two loaded semi-automatic pistols were found on Jimenez-Zarate. In addition, the DEA agents subsequently searched Barraza-Murillo's apartment, with his consent, and found two other weapons located there.

 With these facts in mind, we turn to the motion before us.

 DISCUSSION

 Barraza-Murillo moves to vacate his sentence and conviction for using or carrying a firearm during a drug trafficking crime in light of the Supreme Court's recent decision in Bailey v. United States, U.S. , 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995). While Barraza-Murillo was not in possession of a firearm himself during the underlying drug crime, one of his co-conspirators was. Barraza-Murillo was charged with violating § 924(c)(1) according to the Supreme Court decision of Pinkerton v. United States, 328 U.S. 640, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946), which held that an act in furtherance of a conspiracy is attributable to all co-conspirators under certain circumstances. Barraza-Murillo now seeks to vacate his sentence for this count, arguing that Bailey renders his conviction for "possession" of a firearm void. We will now turn to a discussion of the application of Bailey to this case, and also outline whether Pinkerton was properly applied to hold Barraza-Murillo accountable for the acts of his co-conspirator.

 1. Using or Carrying A Firearm In a Drug Crime

 We first wish to note that Barraza-Murillo bases his motion to vacate on an erroneous belief as to the basis of his § 924(c)(1) charge. As discussed above, there were two separate instances in which guns were found in this case: guns were removed from one of Barraza-Murillo's co-conspirators at the scene of the drug deal, and two guns were found in a subsequent search of Barraza-Murillo's apartment. The petitioner bases his motion on the premise that he was convicted for the latter guns, arguing that merely having them in his apartment does not constitute "use" of a firearm under Bailey. While this argument may be meritorious in theory, it is of no avail to the petitioner here.

 It is clear that Barraza-Murillo was charged under § 924(c)(1) for the use or carrying of the guns which were found on Jimenez-Zarate, not for the guns which were found in his apartment. See Transcript, Excerpt of Proceedings-- Change of Pleas Before the Honorable Charles P. Kocoras at 18 (hereafter "Transcript")("Now, Count III charges each of you [with] carrying a firearm -- the firearm described is a .22 caliber pistol and a .38 semi-automatic pistol-- during the commission of the drug crime [in the other counts of the indictment].") The guns found in Barraza-Murillo's apartment were a .30 caliber semi-automatic carbine and a .44 caliber revolver. See Government's Response at 6. Therefore, it is clear that the guns found in his apartment are not ...


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