516 U.S. 137 (1995), 94-7448, Bailey v. United States

Docket Nº:Case No. 94-7448
Citation:516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472, 64 U.S.L.W. 4039
Case Date:December 06, 1995
Court:United States Supreme Court

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516 U.S. 137 (1995)

116 S.Ct. 501, 133 L.Ed.2d 472, 64 U.S.L.W. 4039




Case No. 94-7448

United States Supreme Court

December 6, 1995[*]

Argued October 30, 1995



Petitioners Bailey and Robinson were each convicted of federal drug offenses and of violating 18 U.S.C. § 924(c)(1), which, in relevant part, imposes a prison term upon a person who "during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm." Bailey's § 924(c)(1) conviction was based on a loaded pistol that the police found inside a bag in his locked car trunk after they arrested him for possession of cocaine revealed by a search of the car's passenger compartment. The unloaded, holstered firearm that provided the basis for Robinson's § 924(c)(1) conviction was found locked in a trunk in her bedroom closet after she was arrested for a number of drug-related offenses. There was no evidence in either case that the defendant actively employed the firearm in any way. In consolidating the cases and affirming the convictions, the Court of Appeals sitting en banc applied an "accessibility and proximity" test to determine "use" within § 924(c)(1)'s meaning, holding, in both cases, that the gun was sufficiently accessible and proximate to the drugs or drug proceeds that the jury could properly infer that the defendant had placed the gun in order to further the drug offenses or to protect the possession of the drugs.


1. Section 924(c)(1) 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. Evidence of the proximity and accessibility of the firearm to drugs or drug proceeds is not alone sufficient to support a conviction for "use" under the statute. Pp. 142-151.

(a) Although the Court of Appeals correctly ruled that "use" must connote more than mere possession of a firearm by a person who commits a drug offense, the court's accessibility and proximity standard renders "use" virtually synonymous with "possession" and makes any role for the statutory word "carries" superfluous. Section 924(c)(1)'s language instead indicates that Congress intended "use" in the active sense of "to avail oneself of." Smith v. United States, 508 U.S. 223, 228-229. This reading receives further support from § 924(c)(1)'s context within

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the statutory scheme, and neither the section's amendment history nor Smith, supra, at 236, is to the contrary. Thus, to sustain a conviction under the "use" prong of § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime. Under this reading, "use" includes the acts of brandishing, displaying, bartering, striking with, and firing or attempting to fire a firearm, as well as the making of a reference to a firearm in a defendant's possession. It does not include mere placement of a firearm for protection at or near the site of a drug crime or its proceeds or paraphernalia, nor the nearby concealment of a gun to be at the ready for an imminent confrontation. Pp. 142-150.

(b) The evidence was insufficient to support either Bailey's or Robinson's § 924(c)(1) conviction for "use" under the active-employment reading of that word. Pp. 150-151.

2. However, because the Court of Appeals did not consider liability under the "carry" prong of § 924(c)(1) as a basis for upholding these convictions, the cases must be remanded. P. 151.

36 F.3d 106, reversed and remanded.

O'Connor, J., delivered the opinion for a unanimous Court.

Alan E. Untereiner argued the cause for petitioners in both cases. With him on the briefs were David B. Smith and Roy T. Englert, Jr.

Deputy Solicitor General Dreeben argued the cause for the United States in both cases. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, James A. Feldman, and John F. De Pue. [†]

Justice O'Connor delivered the opinion of the Court.

These consolidated petitions each challenge a conviction under 18 U.S.C. § 924(c)(1). In relevant part, that section imposes a 5-year minimum term of imprisonment upon a person who "during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm." We are asked to decide whether evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is alone

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sufficient to support a conviction for "use" of a firearm during and in relation to a drug trafficking offense under 18U.S.C. § 924(c)(1).


In May 1989, petitioner Roland Bailey was stopped by police officers after they noticed that his car lacked a front license plate and an inspection sticker. When Bailey failed to produce a driver's license, the officers ordered him out of the car. As he stepped out, the officers saw Bailey push something between the seat and the front console. A search of the passenger compartment revealed one round of ammunition and 27 plastic bags containing a total of 30 grams of cocaine. After arresting Bailey, the officers searched the trunk of his car where they found, among a number of items, a large amount of cash and a bag containing a loaded 9-mm. pistol.

Bailey was charged on several counts, including using and carrying a firearm in violation of 18 U.S.C. § 924(c)(1). A prosecution expert testified at trial that drug dealers frequently carry a firearm to protect their drugs and money as well as themselves. Bailey was convicted by the jury on all charges, and his sentence included a consecutive 60-month term of imprisonment on the § 924(c)(1) conviction.

The Court of Appeals for the District of Columbia Circuit rejected Bailey's claim that the evidence was insufficient to support his conviction under § 924(c)(1). United States v. Bailey, 995 F.2d 1113 (CADC 1993). The court held that Bailey could be convicted for "using" a firearm during and in relation to a drug trafficking crime if the jury could reasonably infer that the gun facilitated Bailey's commission of a drug offense. Id., at 1119. In Bailey's case, the court explained, the trier of fact could reasonably infer that Bailey had used the gun in the trunk to protect his drugs and drug proceeds and to facilitate sales. Judge Douglas H. Ginsburg, dissenting in part, argued that prior Circuit precedent required reversal of Bailey's conviction.

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In June 1991, an undercover officer made a controlled buy of crack cocaine from petitioner Candisha Robinson. The officer observed Robinson retrieve the drugs from the bedroom of her one-bedroom apartment. After a second controlled buy, the police executed a search warrant of the apartment. Inside a locked trunk in the bedroom closet, the police found, among other things, an unloaded, holstered .22-caliber Derringer, papers and a tax return belonging to Robinson, 10.88 grams of crack cocaine, and a marked $20 bill from the first controlled buy.

Robinson was indicted on a number of counts, including using or carrying a firearm in violation of § 924(c)(1). A prosecution expert testified that the Derringer was a "second gun," i. e., a type of gun a drug dealer might hide on his or her person for use until reaching a "real gun." The expert also testified that drug dealers generally use guns to protect themselves from other dealers, the police, and their own employees. Robinson was convicted on all counts, including the§ 924(c)(1) count, for which she received a 60-month term of imprisonment. The District Court denied Robinson's motion for a judgment of acquittal with respect to the "using or carrying" conviction and ruled that the evidence was sufficient to establish a violation of § 924(c)(1).

A divided panel of the Court of Appeals reversed Robinson's conviction on the § 924(c)(1) count. United States v. Robinson, 997 F.2d 884 (CADC 1993). The court determined, "[g]iven the way section 924(c)(1) is drafted, even if an individual intends to use a firearm in connection with a drug trafficking offense, the conduct of that individual is not reached by the statute unless the individual actually uses the firearm for that purpose." Id., at 887. The court held that Robinson's possession of an unloaded .22-caliber Derringer in a locked trunk in a bedroom closet fell significantly short of the type of evidence the court had previously held necessary to establish actual use under § 924(c)(1). The mere proximity of the gun to the drugs was held insufficient to

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support the conviction. Judge Henderson dissented, arguing, among other things, that the firearm facilitated Robinson's distribution of drugs because it protected Robinson and the drugs during sales.

In order to resolve the apparent inconsistencies in its decisions applying § 924(c)(1), the Court of Appeals for the District of Columbia Circuit consolidated the two cases and reheard them en banc. In a divided opinion, a majority of the court held that the evidence was sufficient to establish that each defendant had used a firearm in relation to a drug trafficking offense and affirmed the § 924(c)(1) conviction in each case. 36 F.3d 106 (CADC 1994) (en banc).

The majority rejected a multifactor weighing approach to determine sufficiency of the evidence to support a § 924(c)(1) conviction. The District of Columbia Circuit had previously applied a nonexclusive set of factors, including: accessibility of the gun, its proximity to drugs, whether or not it was loaded, what type of weapon was involved, and whether expert testimony supported the Government's theory of "use." The majority explained that this approach invited the reviewing court to reweigh the evidence and make its own finding with respect to an ultimate fact, a function properly left to the jury; had produced widely...

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