Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96-C-314 Thomas J. Curran, Judge.
Before CUDAHY, DIANE P. WOOD, and EVANS, Circuit Judges.
This is yet another case raising issues in the wake of Bailey v. United States, 116 S. Ct. 501, decided by the Supreme Court on December 6, 1995. We consider today an appeal by the government.
On October 1, 1992, Percy Lee and 14 coconspirators were indicted in a 23-count indictment. Lee was charged in two of the counts: count 1, being a member of a cocaine distribution conspiracy in violation of 21 U.S.C. sec. 846; and count 23, using and carrying firearms during and in relation to the count 1 conspiracy, in violation of 18 U.S.C. sec. 924(c).
Lee pled guilty to both charges on December 22, 1992. In his written plea agreement Lee acknowledged that he was charged with "possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. sec. 924(c)" and that he understood that to sustain the claim in count 23 at trial the United States would have to prove that he "knowingly used or carried a firearm" (emphasis added) and that the use or carrying was during and in relation to a drug crime. Lee admitted he was guilty of the charge.
At the plea hearing District Judge Thomas Curran asked Lee about the plea agreement:
Q: Now, the plea agreement that you have presented to this court, or that has been presented to this court, indicates that you have been charged in the indictment in count one with distribution of cocaine and in count 23 with possession of a firearm. You're aware of that, are you?
Later in the hearing the following colloquy took place:
Q: What do you understand to be the nature of the charges against you? What is your understanding of it? [Lee answered re: count 1] . . . And with respect to the possession of a firearm during a drug trafficking crime, what do you understand that to be?
A: That it was in possession while drugs was being sold, like trafficking or while ...