Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 95 C 7518 George M. Marovich, Judge.
Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.
DECIDED APRIL 30, 1997 *fn1
Nearly four years ago, Garrie Lucky Stanback pled guilty to using or carrying a firearm during and in relation to the commission of a drug trafficking offense, in violation of 18 U.S.C. sec. 924(c)(1). Following the Supreme Court's opinion in Bailey v. United States, 116 S. Ct. 501 (1995), which defined "use" of a firearm for purposes of section 924(c)(1) more narrowly than we had before, Stanback asked the district court to vacate his conviction pursuant to 28 U.S.C. sec. 2255. The district court denied relief, concluding that even if Stanback had not "used" a firearm in a way that satisfied Bailey, he nonetheless had "carried" it and thus was properly convicted under section 924(c). Because we find the facts underlying Stanback's plea insufficient to establish that he either "used" or "carried" a firearm in a manner proscribed by the statute, we reverse.
Based on a confidential informant's purchase of cocaine from Stanback on two occasions early in 1992, agents of the Bureau of Alcohol, Tobacco and Firearms, acting in concert with members of the Evanston police department, secured a warrant from a federal magistrate judge to search Stanback's residence on the far north side of Chicago. When law enforcement personnel entered Stanback's apartment on the evening of March 19 to execute the warrant, they found Stanback and two other people standing in his living room. In the middle of the room an overturned box served as a makeshift coffee table. On top of the box lay a loaded Smith & Wesson .38 caliber revolver, a triple-beam scale bearing a white powder residue, two bottles of Inositol (an agent commonly used to "cut" cocaine for distribution), fifteen "pony packs" of powder cocaine, thirty small sheets of paper suited to making such packs, a video cassette case containing additional powder cocaine, and approximately $126 in U.S. currency. Stanback was placed under arrest and advised of his Miranda rights. After executing a waiver of those rights, Stanback acknowledged to the agents that the gun and the narcotics were his, that he had been selling narcotics for about seven years, and that he had been cutting and packaging cocaine for distribution when the agents and police officers had entered his apartment. *fn2 Stanback insisted that the other two people in the apartment had nothing to do with either the guns or the cocaine, however, and they were neither taken into custody nor charged with any offense. A grand jury subsequently indicted Stanback on charges that he had possessed approximately 16.5 grams of cocaine with the intent to distribute (21 U.S.C. sec. 841(a)(1)), "used and carried" a firearm during and in relation to the commission of a drug trafficking crime (18 U.S.C. sec. 924(c)(1)), and possessed a firearm after previously having been convicted of an offense punishable by imprisonment for a term of more than a year (18 U.S.C. sec. 922(g)(1)).
In July 1993, Stanback agreed to plead guilty to possessing the cocaine with the intent to distribute (Count One of the indictment) and to using and carrying a firearm in connection with the narcotics offense (Count Two), and the government agreed to dismiss the felon-in-possession charge. In a written plea agreement, Stanback admitted to the following in regard to the section 924(c) charge:
With respect to Count Two of the indictment, on March 19, 1992, the defendant used and carried a firearm, namely his Smith and Wesson .38 caliber revolver, serial number BDW7583, during and in relation to a drug trafficking crime, namely the offense described in subparagraph (a) above and charged in Count One of this indictment. On the evening of March 19, 1992, the defendant carried and possessed the above-described firearm as he prepared the cocaine for distribution and in relation to those activities. R. 30 at 3 para.5(b).
A change of plea hearing took place on the same day that Stanback signed the plea agreement. When the district judge asked the government to summarize the evidence that it would present if the case went to trial, the prosecutor remarked that "[w]ith respect to Count 2 of the indictment, the evidence would show that on March 19, the defendant used and carried [a] firearm, namely, his Smith and Wesson .38 caliber revolver, serial number listed in the plea, during and in relation to the drug trafficking crime, namely, the offense described previously and charged in Count 1." July 6, 1993 Tr. at 20. When asked whether the prosecutor's statement was correct, Stanback answered that it was and that he disagreed with no part of it. Id. at 20-21. The district court, finding that Stanback's proffered plea of guilty had an independent basis in fact and that Stanback was competent and willing to plead guilty, accepted his plea and adjudged him guilty of the two charges. Id. at 21. Three months later, the court ordered Stanback to serve a prison term of sixteen months (the top of the applicable sentencing range) on the narcotics charge and a consecutive term of five years on the firearm charge, as required by statute. R. 32; see 18 U.S.C. sec. 924(c)(1).
In 1995, following the Supreme Court's decision in Bailey, Stanback moved to vacate his conviction under section 924(c) and the corresponding five-year sentence that the district court had imposed. The government argued that Stanback's decision to plead guilty barred a collateral attack upon his conviction, but the court rejected that assertion and permitted the challenge. "Here, it appears that Stanback, his counsel and indeed, the government and the Court all misunderstood the requirements for a conviction for 'use' under section 924(c)(1) at the time of Stanback's plea." United States v. Stanback, 1996 WL 435107, *3 (N.D. Ill. July 31, 1996). The court proceeded to examine the facts to which Stanback had stipulated in pleading guilty, which we have recounted above. Although the court assumed that these facts might not suffice to establish that Stanback had "used" the gun in a way that would satisfy Bailey's definition of "use," it found them sufficient to establish that he had "carried" the gun. Id. *4.
Although Stanback was not carrying the gun at the time of his arrest, the facts as admitted in the plea agreement and in open court do support the inference that he had carried it at some time that night while he possessed the cocaine. First, at the time of the arrest, Stanback immediately admitted that the drugs, drug paraphernalia and the gun, which were all together on the table, were his. Second, the gun was immediately available to Stanback as he was "cutting" and packaging the cocaine --it was not hidden; it was not in another room. In light of these facts, it is reasonable to assume that Stanback carried the gun while he ...