U.S. v. Lopez

Decision Date01 October 1996
Docket Number92-50145,Nos. 92-50137,s. 92-50137
Citation100 F.3d 98
Parties96 Cal. Daily Op. Serv. 8151, 96 Daily Journal D.A.R. 13,537, 96 Daily Journal D.A.R. 14,765 UNITED STATES of America, Plaintiff-Appellee, v. Rolando LOPEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Josefa FUENTES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Joseph F. Walsh, Los Angeles, CA, for defendant-appellant Rolando Lopez.

Robin R. Scroggie, Los Angeles, CA, for defendant-appellant Josefa Fuentes.

Steven M. Arkow, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.

On Remand from the Supreme Court of the United States. D.C. No. CR-91-909-MLR.

Before FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the convictions for using or carrying a firearm during and in relation to a drug trafficking crime can stand in light of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and jury instructions which misdescribed an element of the offense.

I

This court affirmed the convictions and sentences of Rolando Lopez and Josefa Fuentes on five counts: conspiracy to distribute 270 grams of heroin in violation of 21 U.S.C. § 846 (count one); distributing twenty-five grams of heroin in violation of 21 U.S.C. § 841(a)(1) (count two); 1 possession with intent to distribute 270 grams of heroin in violation of 21 U.S.C. § 841(a)(1) (count three); using and carrying a super semi-automatic .38 caliber pistol on October 16, 1991 during and in relation to a drug trafficking crime--possession with intent to distribute--in violation of 18 U.S.C. § 924(c) (count four); and using and carrying a super semi-automatic .38 caliber pistol and loaded AK-47 rifle on October 16, 1991 during and in relation to a drug trafficking crime--conspiracy to possess heroin with intent to distribute--in violation of 18 U.S.C. § 924(c) (count five). United States v. Lopez-Fuentes, 37 F.3d 565 (9th Cir.1994). 2

The Supreme Court of the United States vacated that opinion and remanded the case for reconsideration in light of Bailey. 3 The Court held that a defendant cannot be convicted under 18 U.S.C. § 924(c)(1) for "using" a firearm unless the defendant "actively employs" the firearm. Bailey, --- U.S. at ----, 116 S.Ct. at 506. Lopez and Fuentes argue that their firearms convictions cannot stand in light of Bailey, both because there is insufficient evidence that they used or carried the firearms, and because the jury instructions defining "using or carrying" were improper.

II

We first address Lopez' and Fuentes' arguments concerning the validity of their firearms convictions in light of Bailey.

A

Lopez and Fuentes first argue that there is not sufficient evidence to support their convictions on count four for using or carrying a pistol during and in relation to their possession with intent to distribute heroin in violation of 18 U.S.C. § 924(c). 4 Lopez and Fuentes maintain that they did not "use" or "carry" the firearm in question, because they never actively employed the pistol during and in relation to the crime. We disagree.

In deciding whether the evidence is sufficient to support Lopez' and Fuentes' convictions for carrying the firearm, we must review the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the "carrying" element beyond a reasonable doubt. 5 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Vgeri, 51 F.3d 876, 879 (9th Cir.1995). In United States v. Hernandez, 80 F.3d 1253, 1258 (9th Cir.1996), our first post-Bailey decision to discuss the issue, we held that in order to convict a defendant under section 924(c) for "carrying" a firearm "the defendant must have transported the firearm on or about his or her person. This means the firearm must have been immediately available for use by the defendant." Id. at 1258 (emphasis added) (citing United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 136, 136 L.Ed.2d 84, (1996)); see also United States v. Willett, 90 F.3d 404, 407 (9th Cir.1996) ("Willett was 'carrying' a gun because he transported it 'within reach and immediately available for use.' "). When viewed in the light most favorable to the prosecution, the evidence was clearly sufficient to allow a rational trier of fact to convict Lopez and Fuentes on this definition of carrying. 6

The evidence showed that Lopez and Fuentes drove in their Ford Explorer to a Burger King parking lot to conduct a prearranged drug sale with undercover Drug Enforcement Agency ("DEA") agents. After Lopez and Fuentes sold the drugs to the agent, they were arrested, and the truck was searched. Agents found a loaded .38 caliber super semi-automatic pistol inside Fuentes' purse. The purse was on the front passenger seat, within easy reaching distance of Lopez and Fuentes, and less than a foot away from the 270 grams of heroin.

This evidence is sufficient to prove beyond a reasonable doubt that Fuentes transported the gun about her person in her purse. Because the district court gave the jury a proper Pinkerton 7 instruction and informed the jury that each coconspirator was vicariously liable for all acts taken by the other conspirator in furtherance of the conspiracy, we hold that the evidence was sufficient to support Lopez' conviction under section 924(c). Cf. United States v. Pimentel, 83 F.3d 55, 58-59 (2nd Cir.1996) (finding evidence sufficient to support section 924(c) conviction because proper Pinkerton instruction given); United States v. Fike, 82 F.3d 1315, 1328 (5th Cir.1996) (same).

B

Lopez and Fuentes next argue that there is no evidence to support their convictions on count five for using or carrying a pistol and a rifle during and in relation to the crime of conspiracy to possess heroin with intent to distribute in violation of 18 U.S.C. § 924(c). After Lopez and Fuentes were arrested in the Burger King parking lot when they met with two informants to consummate the drug sale, the agents went to the residence of Lopez and Fuentes and found one gram of heroin and a loaded .38 caliber semi-automatic pistol in the top drawer of the dresser. Agents also found a loaded AK-47 assault rifle in the trash can in the front yard of the residence. In light of Bailey, the government concedes that the evidence is not sufficient to support the convictions on count five. We agree with the government that the convictions on count five must be reversed.

C

In light of its recommendation to vacate both the convictions and the twenty-year sentences on this count, the government maintains that Lopez and Fuentes should be resentenced and subjected to a two-level enhancement to their base offense level calculated for counts one (conspiracy to distribute heroin) and three (possession of heroin with intent to distribute) based on their possession of the two loaded firearms found in their residence, pursuant to U.S.S.G. § 2D1.1(b)(1). 8 We agree with the government that remanding the case for resentencing would permit a sentence that appropriately reflects the enhanced danger posed when a defendant possesses a loaded firearm while engaged in drug trafficking. See 28 U.S.C. § 2106.

The government may "ask the court of appeals to exercise its discretion under § 2106" to order resentencing on the counts of a defendant's sentence that were affirmed. United States v. Minor, 846 F.2d 1184, 1189 (9th Cir.1988). Here, counts one and three were affirmed in our previous disposition. However, where a sentence under Chapter 2 of the United States Sentencing Guidelines is imposed in conjunction with a sentence for an underlying offense (e.g., possession of heroin with intent to distribute), no specific offense characteristic for the possession, use, or discharge of a firearm (e.g., § 2D1.1(b)(1)) may be applied in respect to the guideline for the underlying offense. See U.S.S.G. § 2k2.4 application note 2. In light of our decision to reverse Lopez' and Fuentes' convictions on count five, however, this double counting concern is eliminated on count one (conspiracy to distribute heroin) and it is appropriate to remand to the district court to allow it to resentence Lopez and Fuentes. See, e.g., United States v. Thomas, 93 F.3d 479, 488 (8th Cir.1996) (vacating § 924(c) conviction and remanding for reconsideration of a two level increase under U.S.S.G. § 2D1.1(b)(1)); United States v. Clements, 86 F.3d 599, 600-01 (6th Cir.1996) (same); United States v. Lang, 81 F.3d 955, 963 (10th Cir.1996) (same); United States v. Fennell, 77 F.3d 510, 510-11 (D.C.Cir.1996) (per curiam) (same).

We therefore affirm the sentence on count three and remand count one to the district court, which should consider whether a sentence enhancement under U.S.S.G. § 2D1.1(b)(1) is warranted.

III

Finally, Lopez and Fuentes argue that even if the evidence was sufficient to support their convictions on count four for carrying the firearm, the convictions should be vacated because the jury instructions defining the term "use or carry" were erroneous. To the extent the jury instructions did not restrict "use" to active employment of a firearm, the government concedes that the instructions were erroneous. However, the government asserts that even if the instructions were improper, the convictions should nonetheless be affirmed, regardless of whether harmless or plain error review is applied. We agree.

We are satisfied that the jury instructions given on the "use or carry" element were flawed. The jury was instructed that

[t]he phrase "use or carry a firearm" means having a firearm available to assist or aid in the commission of a crime alleged in counts one and three of the indictment.... The government is not required to show that a defendant actually displayed...

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