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.
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 the same guns which Barraza-Murillo was charged with using or carrying under § 924(c)(1), and his motion, which erroneously states that they are the basis of his conviction, must be denied.
It is true that the guns found in his apartment were discussed in Barraza-Murillo's P.S.I. Report. The P.S.I. states that "A further aggravating factor is that ... it was later discovered that the defendant had, in his apartment, a fully loaded .30 caliber semiautomatic carbine and a fully-loaded .44 caliber revolver." See Petitioner's Motion at 3. However, the mention of these guns in the P.S.I. is to determine the applicable guideline range for imposing sentence and is not in any way connected with the indictment in the case. Since Barraza-Murillo now erroneously alleges that he was indicted (and plead guilty) based on the guns found in his apartment, his motion to vacate his sentence must be denied.
Since this § 2255 motion was filed by Barraza-Murillo pro se, however, we must construe it liberally. Therefore, we will proceed to a discussion of whether his § 924(c)(1) conviction for use or carrying of guns by his co-conspirators was affected by Bailey. Because we find that it was not, we therefore must deny Barraza-Murillo's motion.
In Bailey, 133 L. Ed. 2d 472, 116 S. Ct. 501, the Supreme Court defined the term "use" for purposes of 18 U.S.C. § 924(c)(1), which in pertinent part provides:
Whoever, during and in relation to any crime of violence or drug trafficking crime... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug traffickingcrime, be sentenced to imprisonment for five years....
In Bailey, the Court held that "use" entails "an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey, 116 S. Ct. at 505 (emphasis in original). Active employment includes such actions as brandishing, displaying, bartering, striking with, firing, or attempting to fire a firearm, and can include referencing a firearm in a person's possession. Bailey, 116 S. Ct. at 508.
In addition to the active use of a gun in a drug trafficking offense, § 924(c)(1) also criminalizes carrying a gun in such circumstances. While Bailey clarified the meaning of "use" under the statute, the Supreme Court indicated that they were not considering criminal liability under the "carrying" portion of the statute. Bailey, 116 S. Ct. at 509. See also United States v. Booker, 73 F.3d 706, 709 (7th Cir. 1996)(stating that Bailey did not reach the meaning of "carry" under the statute). The Seventh Circuit has interpreted "carrying" to mean "to move while supporting: TRANSPORT." United States v. Baker, 78 F.3d 1241, 1247 (7th Cir. 1996)(emphasis in original). With this definition in mind, it is clear that Jimenez-Zarate was "carrying" a gun for purposes of § 924(c)(1), and that he was not convicted for mere "possession" of a gun.
While it is true that the defendants' respective judgments reflect that they plead guilty to "possession of a firearm during a drug offense," see Judgment in a Criminal Trial of Barraza-Murillo at 1, there is ample evidence that the defendants were aware, at the time they plead guilty, that they were charged with "use" or "carrying" of a gun during a drug trafficking crime and not merely "possession." The indictment against Barraza-Murillo and Jimenez-Zarate charges them with the following:
[the] defendants herein, used or carried a firearm, namely a .22 caliber semi-automatic pistol and a .380 semi-automatic pistol, during and in relation to the commission of drug trafficking crimes...