Price v. U.S., Criminal Action No. 2:92cr196.
| Decision Date | 07 March 1997 |
| Docket Number | Criminal Action No. 2:92cr196. |
| Citation | 959 F.Supp. 310 |
| Parties | Derrick Anthony PRICE, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Derrick Anthony Price, Atlanta, GA, Pro Se.
Ronald G. Reel, Special Asst. U.S. Attorney, U.S. Attorney's Office, Norfolk, VA, for United States of America.
This matter is before the Court on the pro se motion of Derrick Price under 28 U.S.C. § 2255 to correct, vacate, or set aside his sentence. Pursuant to a plea agreement, Price pled guilty to using a firearm in relation to a drug trafficking offense, in violation 18 U.S.C. § 924(c). Price argues that his conviction is nevertheless invalid under Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), because no evidence established that he "used" a firearm. Because this Court holds that Bailey should not be applied retroactively to cases on collateral review, the motion is denied,
On May 8, 1992, Price drove to a house where police were executing a search warrant. Unaware of the search in progress, Price entered the house and consented to a patdown search. A police officer discovered on Price's person a bag containing about thirty grams of crack cocaine. The officer told Price that he was under arrest. A distraction gave Price the opportunity to escape, and he fled the house. Although an officer pursued him, Price was not apprehended. Police then searched the car in which Price arrived and found identification, what appeared to be a ledger of drug sales and customer accounts, and 3.26 grams of crack cocaine. The City of Norfolk Police Department subsequently issued a warrant for his arrest and charged Price with possession of cocaine with intent to distribute, sale of cocaine, and escape without force.
On July 10, 1992, police officers spotted a car registered to Price, who was still wanted in connection with the May 8 events. The police stopped the vehicle. Two other people were in the front seat; Price was the only passenger in the back seat. Next to Price on the car's backseat was a gun bag, which held a nine-millimeter handgun, two loaded magazines of ammunition, fifty nine-millimeter bullets, and a medicine bottle containing 6.6 grams of crack cocaine.
In November 1992, a grand jury charged Price with a seven-count indictment. Counts One, Two, and Four charged that the defendant did knowingly and unlawfully distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Each count alleged distribution on different dates. Count Three charged Price with an attempt to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846. Count Five charged Price with possession with intent to distribute cocaine base on May 8, 1992, in violation of 21 U.S.C. § 841(a)(1). Count Six also charged Price with possession with intent to distribute cocaine base on July 10, 1992. Count Seven charged the use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).1 The drug trafficking crime referenced was the charge in Count Six of possession with intent to distribute cocaine base on July 10, 1992. Price now challenges his conviction under Count Seven.
Pursuant to a plea agreement, Price pled guilty to the charges in Counts Five and Seven. In accordance with the plea agreement, the five other counts were dropped.
At Price's guilty plea hearing, the Court conducted a thorough colloquy to ensure that Price's guilty plea was knowing and voluntary. The undersigned was convinced that Price's plea met that standard under the law as the Fourth Circuit interpreted it at that time. On April 28, 1993, Price was sentenced to 97 months imprisonment on Count Five and 60 months consecutive imprisonment on Count Seven. He did not directly appeal his conviction. Price later filed this motion to vacate, set aside or correct his sentence.
Price was convicted and sentenced prior the Supreme Court's ruling in the case of Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Prior to the decision in Bailey v. United States, courts had generally interpreted the term "use" broadly and almost synonymously with "possession" and "carry." Under pre-Bailey law, Price's guilty plea and conviction conformed with 18 U.S.C. § 924(c).
The Bailey Court, however, more narrowly construed the statutory term "use" and required that a defendant "actively employ" a firearm, by means such as brandishing, displaying, bartering, firing, or attempting to fire the firearm in order to be guilty of "using" the firearm in violation of 18 U.S.C. § 924(c). Id. at ___, 116 S.Ct. at 508. Using a firearm to strike another or referring to the firearm during a transaction also could support a conviction under the "use" prong of 18 U.S.C. § 924(c). Id. According to Bailey "use" does not include the mere possession or storage of a firearm for protection at or near the site of a drug crime or its proceeds. Id. The Court explained that a person can use a firearm without carrying it and can carry a firearm without using it. Id. at ___, 116 S.Ct. at 507. Bailey did not alter the prevailing definitions of "carry."
Many defendants were sentenced under 18 U.S.C. § 924(c) for actions which would no longer be considered criminal under Bailey's definition of "use," causing courts to vacate sentences or reverse these convictions. See e.g. United States v. Miller, 84 F.3d 1244 (10th Cir.1996). Reversals have been common in jury trials when it cannot be ascertained whether the jury found that the defendant was "using" the firearm, or whether it found that the defendant was "carrying" the firearm. See, e.g., United States v. Smith, 94 F.3d 122 (4th Cir.1996). Fewer cases have addressed the impact of Bailey upon cases in which the defendant pled guilty and later challenged his conviction on collateral review.
In this case, Price argues that his conviction under 18 U.S.C. § 924(c)(1) ought to be set aside because no evidence established that he used a firearm. The Government argues that his conviction should be upheld because a guilty plea waives a defendant's right to challenge the factual basis of the crime. Price's challenge is not, however, a challenge to the factual basis for his plea. He does not now deny the conduct to which he admitted, or attempt to alter the facts underlying his conviction. Instead, he claims that the conduct that he admitted is no longer defined as a criminal "use" of a firearm under Section 924.
Clearly, under the law as is now understood after Bailey, Price did not "use" the firearm on the facts before this Court. But Price did "carry" the firearm; he knowingly transported the gun with drugs in a portable gun bag placed next to him in a vehicle. See United States v. Mitchell, 104 F.3d 649, 653 (4th Cir.1997) (); United States v. Willett, 90 F.3d 404, 407 (9th Cir.1996) (); United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.1996) (); United States v. Crawford, 932 F.Supp. 748, 752 (E.D.Va.1996) (). Thus, Price seeks to vacate his conviction for "using" a firearm, even though he did, in fact, violate the statute under which he was charged.2
Pursuant to 28 U.S.C. § 2255, the statute upon which petitioner relies,
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Thus, the question in this case is whether Price was sentenced in violation of the Constitution or laws of the United States. Price pled guilty to a criminal offense. At the time, his plea conformed to the then-existing state of the law. Subsequent to Price's guilty plea, the Supreme Court in Bailey then altered the prevailing judicial interpretations of 18 U.S.C. § 924(c). Thus, this Court must determine whether the new rule of law as set forth in Bailey should be applied retroactively on collateral review, long after defendant's conviction became final.
In Bailey, the Supreme Court considered two cases on direct appeal, and the Court expressly indicated that its decision must be retroactively applied on direct review. Several district courts, including courts in this district, have found Bailey retroactive on collateral review also. See e.g.; United States v. Forrest, 934 F.Supp. 731 (E.D.Va. 1996); Crawford, 932 F.Supp. 748; Abreu v. United States, 911 F.Supp. 203 (E.D.Va. 1996); United States v. Cota-Loaiza, 936 F.Supp. 751 (D.Colo.1996) (). Only one Circuit Court of Appeals, however, has squarely addressed the issue and found Bailey retroactive on collateral review.3 See United States v. Barnhardt, 93 F.3d 706 (10th Cir. 1996). In contrast, the Court of Appeals for the Eighth Circuit refused to apply Bailey retroactively on collateral review, reasoning that such claims are procedurally defaulted if not raised on direct review. See Bousley v....
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