Fair v. U.S.

• Decision Date: 09 September 1998
• Docket Number: No. 97-5876,97-5876
• Citation: 157 F.3d 427,1998 WL 567881
• Parties: Buford Dale FAIR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 427

157 F.3d 427

Buford Dale FAIR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 97-5876.

United States Court of Appeals, Sixth Circuit.

Submitted Aug. 5, 1998.

Decided Sept. 9, 1998.

Fred E. Peters (briefed), Lexington, Kentucky, for Petitioner-Appellant.

James E. Arehart (briefed), Office of the U.S. Attorney, Lexington, Kentucky, for Respondent-Appellee.

Before: KRUPANSKY, NORRIS, and SILER, Circuit Judges.

OPINION

KRUPANSKY, Circuit Judge.

The petitioner-appellant, Buford Dale Fair ("Fair"), has moved under 28 U.S.C.A. § 2255 ¹ to vacate, set aside, or correct his sentence imposed following his May 12, 1988 jury conviction for one count of using and carrying firearms "during and in relation to" the commission of a drug trafficking offense. ² On August 8, 1998, the district court condemned Fair pursuant to 18 U.S.C.A. § 924(c) ³ to 60 months in the federal correctional system for this offense, to run consecutively to his conspiracy and aiding and abetting distribution sentences. On December 16, 1996, Fair complained, via section 2255 motion, that insufficient trial evidence supported his section 924(c) conviction in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and that the trial court's section 924(c) jury charge erroneously stated the pertinent law as defined by Bailey and thus unconstitutionally deprived him of a fair trial. Fair now challenges the district court's rejection of his section 2255 petition.

Previously, Fair and Moser had directly appealed their convictions and sentences on several theories not germane to the petition sub judice. The Sixth Circuit, in affirming their convictions and sentences, concluded that the evidence, when viewed most favorably for the prosecution, proved that Fair and Moser had completed three illegal cocaine sales to undercover law enforcement officers between January 7 and March 10, 1988. Regarding the final transaction, the Sixth Circuit pronounced:

The third and final transaction took place on March 10, 1988. [Investigators] Dailey and Probst, as well as Dave Mirus, another undercover state detective, accompanied Moser to the Fair residence. Fair gave the men instructions to meet him later at a roadside rest [area] a short distance from his home. When Fair appeared, Moser walked over to Fair's vehicle, obtained a package [which contained cocaine], and returned to the agents' vehicle. Moser and Fair were then arrested. Fair was found to be carrying a semi-automatic handgun, and a revolver was found on the floorboard of Fair's vehicle.

United States v. Moser and Fair, 870 F.2d 658, 1989 WL 25800 at * 1 (6th Cir. March 20, 1989) (per curiam) (emphasis added), cert. denied, 491 U.S. 909, 109 S.Ct. 3196, 105 L.Ed.2d 704 (1989).

The trial testimony of arresting officer Russ Sparks, and undercover detective James Dailey, evidenced that, on March 10, 1988, immediately following the cocaine transfer, Officer Sparks seized a loaded 9 mm. semi-automatic handgun from inside the front of Fair's trousers, and surfaced a loaded .38 caliber revolver lying in plain view on the floor board between the front driver and passenger seats of Fair's truck. Only Fair had occupied that vehicle throughout the subject transaction.

Prior to Bailey, the Sixth Circuit had not precisely differentiated between the "uses" and "carries" language of section 924(c); it had broadly deemed a firearm "used" or "carried" for section 924(c) purposes "if a firearm merely 'embolden[ed]' the defendant or otherwise serve[d] to facilitate an offense, even if the weapon was not displayed or discharged." United States v. Warner, 10 F.3d 1236, 1239 (6th Cir.1993), cert. denied, 511 U.S. 1147, 114 S.Ct. 2176, 128 L.Ed.2d 896 (1994) (citing United States v. Morrow, 977 F.2d 222, 231 (6th Cir.1992) (en banc), cert. denied, 508 U.S. 975, 113 S.Ct. 2969, 125 L.Ed.2d 668 (1993)). Its broad interpretation of § 924(c) explained that a firearm was "used" or "carried" during and in relation to a controlled substance infraction in any circumstances "where drug traffickers ha[d] ready access to weapons with which they secure[d] or enforce[d] their transactions." United States v. Acosta-Cazares, 878 F.2d 945, 952 (6th Cir.1989), cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989). However, on December 6, 1995, the Supreme Court decided in Bailey, 516 U.S. at 143, 116 S.Ct. 501, that the "use" of a firearm during and in relation to a narcotics trafficking crime "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." ⁴ (Emphasis in original).

Subsequently, on December 16, 1996, Fair instigated the subject section 2255 petition, asserting that his imprisonment for violation of section 924(c) was illegal because the trial evidence did not satisfy the Bailey definition of "use" of a firearm "in relation to" a drug trafficking crime, and because the trial court's jury instruction concerning the application of section 924(c) was defective. ⁵ The district court rejected the appellant's proffered arguments on June 9, 1997. On June 30, 1997, the district court granted Fair a certificate of appealability under 28 U.S.C.A. § 2253(c) "on the issue of whether he is entitled to relief from his 1988 sentence for the violation of 28 [sic--18] U.S.C. § 924(c) in light of the United States Supreme Court's holding in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)." J.A. at 48.

The Sixth Circuit reviews de novo district court rulings on habeas corpus petitions, although associated findings of historical fact are generally reviewed for clear error. Cardinal v. United States, 954 F.2d 359, 362 (6th Cir.1992). On collateral review, a trial error is deemed harmless unless it had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). It is a "well-settled principle that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (note omitted). "To prevail under 28 U.S.C. § 2255, a defendant must show a 'fundamental defect' in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994) (citation omitted). When the section 2255 petitioner has procedurally defaulted his contentions by failing to assert them on direct appeal or via a previously litigated habeas application, he must further either prove (1) that he possessed good cause for failing to do so ⁶ and would suffer actual prejudice if his averments are deemed precluded, or (2) that he is actually innocent of the subject offense. Bousley v. United States, 523 U.S. 614, ----, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Floyd v. Alexander, 148 F.3d 615, 617-18 (6th Cir.1998); Rules Governing § 2255 Cases, Rule 9(b), 28 U.S.C.A. foll. § 2255.

Bailey claims may be asserted retroactively by means of motions under section 2255. In re Hanserd, 123 F.3d 922, 926 (6th Cir.1997). Fair has correctly argued that his March 10, 1988 conduct did not comprise "use" of a firearm under section 924(c) as construed by Bailey. However, count 5 of the indictment charged Fair with both "using" and "carrying" a firearm in violation of 18 U.S.C. § 924(c). Where both "using" and "carrying" have been charged, evidence sufficient to support either element will sustain a section 924(c) conviction. United States v. Mauldin, 109 F.3d 1159, 1161 (6th Cir.1997); United States v. Riascos-Suarez, 73 F.3d 616, 623-24 (6th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). The undisputed trial evidence proved that Fair had carried a loaded firearm on his person during the March 10, 1988 offense, and simultaneously carried a second loaded handgun in the passenger compartment of his vehicle within easy reach, which patently proved the offense of "carrying" firearms during the unlawful distribution of a controlled substance. See Muscarello v. United States, --- U.S. ----, ---- - ----, 118 S.Ct. 1911, 1918-20, 141 L.Ed.2d 111 (1998) (explaining that the term "carries" a firearm, as used in section 924(c), has a broad meaning which includes not only the carriage of a firearm on the person of an offender during a drug crime but also includes the carriage of a firearm in the locked glove compartment or trunk of an automobile used to deliver narcotics).

The petitioner has theorized that, although he carried the subject weapons "during" the narcotics offense of March 10, 1988, the prosecution failed to prove that he carried either weapon "in relation to" that underlying transaction, because purportedly no evidence directly linked his possession of the subject weapons to the commission of the predicate drug distribution crime. Fair has alleged that he always carried a firearm, in accordance with an alleged common practice and custom in the pertinent region (a rural area of Eastern Kentucky). ⁷ However, on the instant record, the inference was inescapable that Fair carried the subject weapons on March 10, 1988 "in relation to" the cocaine sale. After passing the contraband to his accomplice Moser, Fair remained at the scene, with the apparent purpose of ensuring that the transfer was completed without incident. Moreover, the record reflected that Moser, who carried no weapons during the sale, had previously warned one of the undercover buyers that Fair was not afraid to use his guns, clearly implying that Fair would enforce the deal with violence if necessary. See United States v. Russell, 76 F.3d 808, 810-12 (6th Cir.1996) (affirming a jury's conclusion that a gun carried by an...