McGee v. U.S.
| Decision Date | 30 August 1996 |
| Docket Number | Crim. No. 90-60038-04.,Civil Action No. 96-0923. |
| Citation | 943 F.Supp. 671 |
| Parties | Charles Lee McGEE v. UNITED STATES of America. |
| Court | U.S. District Court — Western District of Louisiana |
Patricia Ann Thomas, Office of Patricia A. Thomas, Abbeville, LA, for Charles Lee McGee.
Charles Lee McGee, Oakdale, LA, Pro Se.
William J. Flanagan, Cristina Walker, U.S. Attorney's Office, Shreveport, LA, Brett L. Grayson, U.S. Attorney's Office, Lafayette, LA, for U.S.
Considering the Report and Recommendation issued by Magistrate Judge Methvin, the court record in this case, and the applicable jurisprudence, the Court concludes that the Report and Recommendation of the magistrate judge is correct and this Court adopts the conclusions set forth therein.
Accordingly, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that McGee's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 as to Count II of the bill of information is DENIED.
Before the court is a motion by defendant, Charles L. McGee, to vacate, set aside or correct sentence under 28 U.S.C. § 2255. This case referred to me by Judge Shaw for a report and recommendation. For the following reasons, it is recommended that defendant's motion be DENIED.
The original indictment in this case, filed September 14, 1990, charged three Broussard brothers with seven counts stemming from their arrests on April 28, 1989 in New Iberia, Louisiana while in possession of guns and cocaine.1 The Broussards named McGee as their drug supplier, and in May 1989 Martin Broussard helped undercover agents induce McGee to travel from Texas to Iberia Parish to deliver three ounces of cocaine. McGee was arrested and pled guilty to state drug charges following his arrest.2 The latter conviction was based upon the three ounces McGee personally delivered to Iberia Parish in May 1989. McGee was not, however, named in the original federal indictment as to the guns and cocaine possessed by the Broussards.
All three Broussards pled guilty on January 10, 1991 to Count 4 of a superceding indictment, charging them with possession with intent to distribute cocaine.
On April 24, 1991, a second superceding indictment added McGee as a defendant on the same seven counts (Rec.Doc. 114). Although it is not explicitly stated in the indictment, McGee was charged as a principal to the substantive crimes, inasmuch as he was the drug supplier but was not physically present at the time of the Broussards' arrest, when the drugs and guns were seized. McGee pled guilty to a bill of information on January 10, 1992 charging the following crimes:
Count I: Possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1);
Count II: Using or carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(Rec.Doc. 176).3
McGee was sentenced on April 24, 1992 to twelve months in prison on Count I and to 60 months in prison on Count II, to run consecutive to Count I. (Rec.Doc. 195-196). McGee did not file a direct appeal. McGee has completed service of his sentence on Count I and currently is serving time on the § 924(c) charge.
A previous motion for post-conviction relief was denied on April 16, 1993 (Rec.Doc. 205). McGee filed the instant § 2255 motion on December 29, 1995, citing Bailey v. United States, 516 U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). McGee argues that he could not be convicted of a § 924(c) offense since he wasn't even in the same state as the gun involved in the transaction. Thus, McGee seeks to have the court vacate his conviction on the § 924(c) charge.
The government filed a response to McGee's § 2255 motion, contending that although McGee's conviction under the "use" prong of the statute may no longer be valid under Bailey, it is valid under the "carry" prong.
I granted McGee's request for court-appointed counsel, and ordered the government and the Federal Public Defender to file 1) supplemental briefs; 2) a joint statement regarding factual stipulations; and 3) a statement whether an evidentiary hearing was necessary. In response to this order, both parties indicated that they would stipulate to the facts and did not require an evidentiary hearing. Soon after, however, McGee filed a motion to withdraw the parties' former agreement and to request an evidentiary hearing pursuant to United States v. Briggs, 939 F.2d 222 (5th Cir.1991).
The evidentiary hearing was set for May 28, 1996. Prior to the hearing, in accordance with a further court order, the parties submitted a joint statement setting forth the factual and legal disputes.
On May 28, 1996, a brief evidentiary hearing was held during which the parties stipulated to the facts per the written factual basis submitted at the time of McGee's guilty plea. The parties offered no additional legal arguments in support of their respective positions.
The bill of information charged McGee as a principal to two offenses physically committed by Phillip and David Broussard on April 28, 1989. The written factual basis filed at the time of McGee's plea, which the parties stipulate is accurate, states that on April 28, 1989, undercover law enforcement agents were attempting to make a purchase of cocaine from Phillip and David Broussard in New Iberia. The Broussards had traveled to the scene in a pick-up truck. The undercover agent entered the vehicle to determine whether the cocaine was present. Upon satisfying himself that it was, the agent returned to his own vehicle for the stated purpose of getting his money, when in fact he radioed for additional agents to move in and make the arrests. The factual basis states in pertinent part:
* * * While he was in the suspects vehicle, he had observed a handgun on the passenger side. As agents converged, Agent Pohlman observed Phillip Broussard reaching for something on the floorboard and pulled his own weapon and advised both subjects to put their hands up. After David Broussard was thrown on the ground, Agent Pohlman retrieved cocaine from Phillip's right hand. Agent Bill Bonin had Phillip step out of the vehicle as well. After the suspects were arrested and advised of their Miranda rights, Agent Pohlman reentered the cab and found on the floorboard a cocked sawed-off shotgun and a loaded .22 caliber H & R revolver (the revolver was on the passenger side of the vehicle).
(Rec.Doc. 183). As noted above, McGee was in Texas at the time these events transpired. He was charged in the superceding indictment as a principal in light of his role as supplier of the cocaine in question. The record is silent with respect to McGee's connection to the guns in question.
In order to obtain habeas relief, a federal prisoner must generally file a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Section 2255 provides four grounds justifying relief: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction to impose such sentence"; (3) "that the sentence was in excess of the maximum authorized by law"; and, (4) that the sentence is otherwise "subject to collateral attack." Although this language appears broad, the scope of § 2255 relief is limited to "fundamental defects" causing a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).
McGee argues that because he was in Texas at the time the firearm in question was being used in Louisiana, McGee cannot be convicted under either the "use" or "carry" prong of § 924(c) in light of the Bailey decision. McGee contends, therefore, that his 60-month sentence for this conviction should be set aside.
The Government responds that the factual basis in support of the guilty plea is sufficient to sustain the conviction of McGee as a principal for "carrying" a firearm in violation of § 924(c)(1). Moreover, the Government argues, regardless of the Bailey decision, because McGee pled guilty as a principal, he never had to believe that his conduct personally entailed the "use" or "carrying" of a firearm.
Title 18 U.S.C. § 924(c)(1) imposes criminal penalties upon any person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm." The Supreme Court in Bailey held that the term "use" as it appears in the statute requires the government to show active employment of the firearm. Bailey, ___ U.S. at ___, 116 S.Ct. at 506.
The active-employment understanding of "use" certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm. We note that this reading compels the conclusion that even an offender's reference to a firearm in his possession could satisfy [the use prong of] § 924(c)(1). Thus, a reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a "use," just as the silent but obvious and forceful presence of a gun on a table can be a "use."
Id., ___ U.S. at ___, 116 S.Ct. at 508.4
Importantly, Bailey did not define the scope of the "carry" prong of § 924(c). In fact, the Court reasoned that a more limited, active interpretation of "use" preserves a meaningful role for "carries" as an alternative basis for a charge, and that "there is no evidence to indicate that Congress intended to expand the meaning of "use" so far as to swallow up any significance for "carry." Id. at ___ _ ___, 116 S.Ct. at 507-508. The Court reasoned:
"While the "use" prong restricts the scope of § 924(c)(1), the Government has other means...
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