Appeal from the United States District Court for the Southern District of Illinois.
Nos. 96-266-WDS & 89-30020-WDS William D. Stiehl, Judge.
Before CUMMINGS, COFFEY, and MANION, Circuit Judges.
SUBMITTED JUNE 13, 1997 *fn*
DECIDED SEPTEMBER 25, 1997
On November 28, 1989, a jury convicted John Westley Wilson of possession of cocaine with the intent to distribute in violation of 21 U.S.C. sec. 841(a)(1), and using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. sec. 924(c). Wilson was sentenced to a term of 41 months' imprisonment on the possession conviction and 60 months' imprisonment on the using or carrying a firearm offense, the terms to be served consecutively. He also received a three year term of supervised release on each offense, to run concurrently, and a $50 assessment on each count. On appeal we affirmed the convictions finding that the inventory search of the car that Wilson was arrested in was lawful, and that he "used" the firearm in violation of sec. 924(c) making it unnecessary for us to determine whether he had also "carried" the firearm. United States v. Wilson, 938 F.2d 785 (7th Cir. 1991).
In March 1996, Wilson filed a motion for habeas corpus pursuant to 28 U.S.C. sec. 2255, arguing that the Supreme Court's decision in Bailey v. United States, 116 S. Ct. 501 (1995), required that his conviction under 18 U.S.C. sec. 924(c) be vacated. The district court denied his motion, finding that even though the facts of the case did not support a determination that Wilson "used" the firearm as that term is defined in Bailey, they did establish that he "carried" the gun in violation of sec. 924(c)(1). Wilson appeals the district court's denial of his motion for habeas relief. We affirm.
The facts are undisputed. On August 19, 1989, at approximately 2:00 p.m., Wilson was driving a car with only one license plate, in violation of Illinois law, and was stopped by Illinois State Trooper Thomas Oliverio. After a routine check of Wilson's driver's license revealed that he had an outstanding arrest warrant for a battery, he was arrested and placed in the squad car. Trooper Oliverio, along with another state trooper dispatched to the scene to provide assistance, inventoried the contents of the vehicle pursuant to the dictates of Illinois State Police Tow-In Policy and Procedure. While conducting the inventory of the trunk, the officers discovered a light plastic bag with a green design containing a shoulder holster with a loaded nine millimeter automatic pistol registered to Wilson with 15 rounds of ammunition in the magazine. Wilson, 938 F.2d at 787. Directly underneath this bag the officers found a blue duffel bag with two scales in it, nine individually wrapped plastic bags containing cocaine, and additional plastic bags. After discovering the drugs, Trooper Oliverio advised Wilson of his Miranda rights, which he orally waived. Oliverio then began to question him about the contents of the trunk and Wilson admitted that he owned the gun and had been hired to deliver the cocaine to a third party in Murphysboro, Illinois.
On August 25, 1989, a grand jury returned a two-count indictment charging Wilson in Count One with possession of cocaine with the intent to distribute in violation of 21 U.S.C. sec. 841(a)(1), and Count Two with using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. sec. 924(c). On October 27, 1989, Wilson's counsel filed a motion to suppress the evidence found in the automobile and to suppress the incriminating statements he made after waiving his Miranda rights. The district court denied his motion, finding that the search was an inventory search, thereby excepted from the requirements of the Fourth Amendment, and that his statements were lawfully obtained. At trial a jury found Wilson guilty of both charges and the district court sentenced him. On direct appeal we affirmed Wilson's convictions. United States v. Wilson, 938 F.2d 785 (7th Cir. 1991). After the Bailey decision, Wilson filed a motion for habeas corpus pursuant to 28 U.S.C. sec. 2255, arguing that it required that his conviction under 18 U.S.C. sec. 924(c) be vacated. The district court denied the motion, finding that although Wilson did not "use" the firearm as that term is defined in Bailey, he did "carry" the gun in violation of sec. 924(c)(1). Wilson appeals the district court's denial of his motion for habeas relief.
The district court properly found and the government agrees that the facts of this case do not support a determination that Wilson "used" a firearm in violation of sec. 924(c)(1) within the meaning of Bailey. In Bailey, the Supreme Court rejected the notion that mere possession is sufficient to satisfy the "use" prong of sec. 924(c) and stated that to meet this standard a defendant must have "actively employed the firearm during and in relation to the predicate crime." Bailey, 116 S. Ct. at 509. The Court described "active employment" as including "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at 508. The question is whether the facts demonstrate that Wilson "carried" the gun in relation to a drug trafficking crime in violation of sec. 924(c).
Wilson sets forth four separate reasons why he believes that he should not have been convicted of "carrying" the gun in violation of sec. 924(c)(1). He argues that: (1) pre-Bailey and post-Bailey decisions from this circuit, as well as other circuits, do not support a finding that he "carried" the firearm; (2) he merely possessed or stored the firearm, as opposed to "carried" it; (3) the legislative history to sec. 924(c)(1) illustrates that Congress intended for the term "carry" to cover only those situations where a firearm is on a defendant's person or in a readily accessible location at the time of arrest; and (4) the district court's analysis was flawed because it solely relied on facts bearing on the "during and in relation to" element of the offense.
A. Definition of "Carrying" with Respect to ...