Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 69 Charles P. Kocoras, Judge.
Before EASTERBROOK, MANION and ROVNER, Circuit Judges.
On December 12, 1995, Gregory Shelby pled guilty to possessing with intent to distribute 120 grams of "crack" cocaine and 497 grams of powder cocaine, in violation of 21 U.S.C. sec. 841(a)(1), and to carrying a firearm during the commission of that crime, in violation of 18 U.S.C. sec. 924(c)(1). Shelby was sentenced to 295 months of incarceration on the two charges. He preserved for appeal his challenge to the district court's denial of his motion to suppress evidence obtained during a search of his car, and to its finding that the facts of his case supported a conviction under section 924(c)(1). He now brings those matters here, along with two issues relating to his sentence. His arguments lack merit, and we affirm his conviction and sentence.
After being alerted by a confidential informant that Shelby was dealing drugs out of his home, police obtained a warrant to search his dwelling. They executed the warrant on January 13, 1993, and, with the aid of their drug-detecting dog "Champ," discovered $75,590 in cash, three grams of cocaine, two handguns, and 3,000 rounds of ammunition.
Although Shelby was not at home when the officers arrived, he drove by during the search in a blue Oldsmobile Delta 88, which the informant had previously identified as Shelby's car. The informant had also reported that Shelby transported drugs, guns and cash in the rear armrests of the Oldsmobile, although no warrant for a search of the car had been obtained. (Sept. 14, 1995 Tr. at 8, 44.) Officers followed the car and pulled Shelby over after a brief low-speed pursuit. They arrested him and then searched his car. The search was conducted by Chicago Police Officer Peter Bukiri and Alcohol, Tobacco and Firearms Special Agent Wendell Roberts, both of whom testified at the hearing on Shelby's motion to suppress the evidence they found in his car. The officers testified that they asked Shelby for permission to search his car before doing so and that he told them to "go ahead." *fn1 During the search, the officers noted that the rear armrests were slightly askew, which was consistent with the theory, also supported by the informant's report, that the armrests may contain secret compartments. After Champ alerted to the right rear armrest, the officers pried it open *fn2 to discover two plastic bags containing "crack" cocaine, $20,580 in cash, and a fully loaded .32 caliber Rossi revolver.
Shelby first appeals the district court's denial of his motion to suppress the evidence obtained during the search of his automobile, arguing that the search was executed without a warrant or consent. We review the district court's factual finding that Shelby consented to the search for clear error. United States v. Yusuff, 96 F.3d 982, 987 (7th Cir. 1996), cert. denied, 117 S. Ct. 999 (1997). In so doing, we accord considerable deference to the court's credibility determinations. Id.
Although the officers did lack a warrant, both testified at Shelby's suppression hearing that they asked Shelby's permission before searching the car and that he told them to "go ahead." Shelby, by contrast, testified that the officers had not sought his permission and that he had not granted it. The court found that Shelby's credibility was undermined by several inconsistencies between his testimony at the hearing and statements contained in the affidavit he filed in support of his motion to suppress. In the affidavit, Shelby asserted that upon stopping Shelby, Bukiri had threatened him by saying, "I've got your fucking ass now and you're going away for 20 years when I get through with you." At the hearing, Shelby omitted that threat from his account. In addition, Shelby testified at the hearing that he requested an attorney after being stopped, although that assertion was absent from his affidavit. Based on those inconsistencies, the district court chose to credit the testimony of the two officers, each corroborated by the other, over that of Shelby, and found that Shelby had consented to the search. The decision to credit the officers' version over that of Shelby was not clearly erroneous. See United States v. Baker, 78 F.3d 1241, 1243 (7th Cir. 1996), cert. denied, 117 S. Ct. 1720 (1997). *fn3
Shelby next challenges his conviction under 18 U.S.C. sec. 924(c)(1), which provides that "[w]hoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . ." *fn4 Shelby argues that keeping a gun in a secret compartment in a rear armrest of his car does not constitute "using" or "carrying" for purposes of section 924(c)(1).
In Bailey v. United States, 116 S. Ct. 501 (1995), the Supreme Court considered the "use" prong of section 924(c)(1). The Court rejected a "proximity and accessibility" test that had been employed by the D.C. Circuit, holding instead that "use" "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 (emphasis in original). The Court noted that "active employment" does not include "hiding [the gun] where he can grab and use it if necessary." 116 S. Ct. at 508. Thus, the Court found that guns locked in a car trunk or a footlocker that was kept in a bedroom closet were insufficient to support convictions under the "use" prong of section 924(c)(1). 116 S. Ct. at 509. There is no question under Bailey, then, that the gun contained in the rear armrest of Shelby's car did not satisfy the "use" prong of section ...