Appeal from the United States District Court for the Central District of Illinois. No. 96 C 2122 Harold A. Baker, Judge.
Before POSNER, Chief Judge, and CUDAHY and DIANE P. WOOD, Circuit Judges.
ARGUED SEPTEMBER 20, 1996
When Michael Broadway was arrested in 1990, he had 50 packets of crack cocaine in one pants pocket and a gun in the other. In addition to a drug offense, a jury convicted him of carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. sec. 924(c)(1). He now argues that a recent Supreme Court decision, Bailey v. United States, __ U.S. __, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), invalidates his firearms conviction. Bailey refined some inferior courts' (including this one's) loose interpretation of what "using or carrying" a firearm under sec. 924(c)(1) means. Mr. Broadway says that he was not "carrying" the gun, at least not within the post-Bailey meaning of sec. 924(c)(1), and he filed a motion under 28 U.S.C. sec. 2255 to this effect. The district court agreed. We do not, and we reverse.
I. Facts and procedural posture
The story of Mr. Broadway's arrest is undisputed. Police officers John Murphy and Wayne Meeker entered a crime-ridden housing project in Champaign, Illinois, where they saw Mr. Broadway and another man lying on the stairs. The officers approached the two men. Appearing drugged, Mr. Broadway tried to get up but staggered against the wall and sank down again. Detective Murphy asked Mr. Broadway for identification, but before Mr. Broadway reached for his pocket, Detective Murphy decided to pat Mr. Broadway down. Mr. Broadway obeyed the detective's instructions to face the wall and hold his hands out. Detective Murphy noticed the corner of a plastic bag jutting out of Mr. Broadway's left front pants pocket. The detective pulled the bag out; inside were some 50 small bags containing a white chunky substance that he believed to be crack cocaine. When he continued the frisk, he felt a hard object in Mr. Broadway's other front pocket and withdrew a .25 caliber pistol. Lab analysis confirmed that the white substance was indeed crack.
A jury convicted Mr. Broadway of two crimes: the firearms violation at issue here under 18 U.S.C. sec. 924(c)(1), and possession of cocaine base with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1). The court sentenced Mr. Broadway to 41 months of imprisonment for drug possession, to be followed by 60 more months for the firearms violation. This court has already heard Mr. Broadway's direct appeal, which challenged the district court's denial of his motion to suppress evidence. We affirmed in an unpublished order.
With his 41 months for drug possession behind him and in the midst of his 60 months for the firearms violation, Mr. Broadway now presses his collateral attack under sec. 2255. He contests only the firearms conviction. The district court granted his motion on June 21, 1996 and ordered that he be freed immediately. The government appeals. We have jurisdiction to hear the appeal under 28 U.S.C. sec. 1291, and we review the district court's decision de novo. McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996).
II. Barred grounds for petitioner's sec. 2255 motion
The district court vacated Mr. Broadway's firearms conviction on June 21, 1996, explaining only that "U.S. v. Bailey was applicable and that the defendant should be released." Dist. Ct. Amended Order (citation omitted). We turn to Bailey and Mr. Broadway's sec. 2255 petition to illumine the court's rationale. (Petitioner repeats on appeal the same arguments that he made to the district court.)
At the time of Mr. Broadway's trial, this circuit employed a broad construction of "to use" that came close to being a synonym for "to possess." United States v. Robinson, 96 F.3d 246, 250 (7th Cir. 1996). In Bailey, the Supreme Court construed the word "use" much more narrowly. It ruled that "sec. 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." 116 S.Ct. at 505. This element of "active employment" thus rendered possession-oriented definitions of "use" defunct.
Bailey consolidated two appeals from the D.C. Circuit. In one case, police found cocaine in a car's passenger compartment and then found a 9-mm. pistol "inside a bag in the locked car trunk." Id. at 504, 509. In the other, police discovered during a raid of the defendant's apartment an unloaded .22-caliber Derringer "in a footlocker in a bedroom closet." Id. at 504, 509. Equipped with the new "active employment" definition for "using" a firearm, the Court ruled that in neither case could the defendant be said to have used the gun under sec. 924(c)(1).
Mr. Broadway's petition challenges his firearms conviction on grounds common to the twenty or so post-Bailey cases that various defendants have brought before this Court: a flawed jury instruction and insufficiency of evidence. See Robinson, 96 F.3d at 250; United States v. Gonzalez, 93 F.3d 311, 319 (7th Cir. 1996). Yet unlike most of these cases, Mr. Broadway's two principal attacks turn out to have little if anything to do with Bailey. This is a grave weakness in his petition. For, also unlike the bulk of the post-Bailey cases, Mr. Broadway comes before this Court on collateral attack and not on direct appeal. Where "mere statutory violations are at issue," as here, the Supreme Court has recently held that sec. 2255 can only avail a petitioner if the alleged error spawned a " 'fundamental defect which inherently results in a complete miscarriage of justice.' " Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)) (other citations omitted). Federal courts lack the power under sec. 2255 to rectify errors that fall short of "vitiat[ing] the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993) (holding that sec. 2255 does not authorize federal courts to ...