Stanback v. U.S.

• Decision Date: 30 April 1997
• Docket Number: No. 96-3469,96-3469
• Citation: 113 F.3d 651
• Parties: Garrie L. STANBACK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 651

113 F.3d 651

Garrie L. STANBACK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 96-3469.

United States Court of Appeals Seventh Circuit.

Argued April 16, 1997.

Decided April 30, 1997. ^*

Carol A. Brook, Mary M. Rowland (argued), Office of the Federal Defender Program, Chicago, IL, for Petitioner-Appellant.

Barry Rand Elden, Chief of Appeals, Duane Deskins (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Respondent-Appellee.

Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Nearly four years ago, Garrie Lucky Stanback pled guilty to using or carrying a firearm during and in relation to the commission of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Following the Supreme Court's opinion in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which defined "use" of a firearm for purposes of section 924(c)(1) more narrowly than we had before, Stanback asked the district court to vacate his conviction pursuant to 28 U.S.C. § 2255. The district court denied relief, concluding that even if Stanback had not "used" a firearm in a way that satisfied Bailey, he nonetheless had "carried" it and thus was properly convicted under section 924(c). Because we find the facts underlying Stanback's plea insufficient to establish that he either "used" or "carried" a firearm in a manner proscribed by the statute, we reverse.

I.

Based on a confidential informant's purchase of cocaine from Stanback on two occasions early in 1992, agents of the Bureau of Alcohol, Tobacco and Firearms, acting in concert with members of the Evanston police department, secured a warrant from a federal magistrate judge to search Stanback's residence on the far north side of Chicago. When law enforcement personnel entered Stanback's apartment on the evening of March 19 to execute the warrant, they found Stanback and two other people standing in his living room. In the middle of the room an overturned box served as a makeshift coffee table. On top of the box lay a loaded Smith & Wesson .38 caliber revolver, a triple-beam scale bearing a white powder residue, two bottles of Inositol (an agent commonly used to "cut" cocaine for distribution), fifteen "pony packs" of powder cocaine, thirty small sheets of paper suited to making such packs, a video cassette case containing additional powder cocaine, and approximately $126 in U.S. currency. Stanback was placed under arrest and advised of his Miranda rights. After executing a waiver of those rights, Stanback acknowledged to the agents that the gun and the narcotics were his, that he had been selling narcotics for about seven years, and that he had been cutting and packaging cocaine for distribution when the agents and police officers had entered his apartment. ¹ Stanback insisted that the other two people in the apartment had nothing to do with either the guns or the cocaine, however, and they were neither taken into custody nor charged with any offense. A grand jury subsequently indicted Stanback on charges that he had possessed approximately 16.5 grams of cocaine with the intent to distribute (21 U.S.C. § 841(a)(1)), "used and carried" a firearm during and in relation to the commission of a drug trafficking crime (18 U.S.C. § 924(c)(1)), and possessed a firearm after previously having been convicted of an offense punishable by imprisonment for a term of more than a year (18 U.S.C. § 922(g)(1)).

In July 1993, Stanback agreed to plead guilty to possessing the cocaine with the intent to distribute (Count One of the indictment) and to using and carrying a firearm in connection with the narcotics offense (Count Two), and the government agreed to dismiss the felon-in-possession charge. In a written plea agreement, Stanback admitted to the following in regard to the section 924(c) charge:

With respect to Count Two of the indictment, on March 19, 1992, the defendant used and carried a firearm, namely his Smith and Wesson .38 caliber revolver, serial number BDW7583, during and in relation to a drug trafficking crime, namely the offense described in subparagraph (a) above and charged in Count One of this indictment. On the evening of March 19, 1992, the defendant carried and possessed the above-described firearm as he prepared the cocaine for distribution and in relation to those activities.

R. 30 at 3 para. 5(b). A change of plea hearing took place on the same day that Stanback signed the plea agreement. When the district judge asked the government to summarize the evidence that it would present if the case went to trial, the prosecutor remarked that "[w]ith respect to Count 2 of the indictment, the evidence would show that on March 19, the defendant used and carried [a] firearm, namely, his Smith and Wesson .38 caliber revolver, serial number listed in the plea, during and in relation to the drug trafficking crime, namely, the offense described previously and charged in Count 1." July 6, 1993 Tr. at 20. When asked whether the prosecutor's statement was correct, Stanback answered that it was and that he disagreed with no part of it. Id. at 20-21. The district court, finding that Stanback's proffered plea of guilty had an independent basis in fact and that Stanback was competent and willing to plead guilty, accepted his plea and adjudged him guilty of the two charges. Id. at 21. Three months later, the court ordered Stanback to serve a prison term of sixteen months (the top of the applicable sentencing range) on the narcotics charge and a consecutive term of five years on the firearm charge, as required by statute. R. 32; see 18 U.S.C. § 924(c)(1).

In 1995, following the Supreme Court's decision in Bailey, Stanback moved to vacate his conviction under section 924(c) and the corresponding five-year sentence that the district court had imposed. The government argued that Stanback's decision to plead guilty barred a collateral attack upon his conviction, but the court rejected that assertion and permitted the challenge. "Here, it appears that Stanback, his counsel and indeed, the government and the Court all misunderstood the requirements for a conviction for 'use' under section 924(c)(1) at the time of Stanback's plea." United States v. Stanback, 1996 WL 435107, * 3 (N.D.Ill. July 31, 1996). The court proceeded to examine the facts to which Stanback had stipulated in pleading guilty, which we have recounted above. Although the court assumed that these facts might not suffice to establish that Stanback had "used" the gun in a way that would satisfy Bailey's definition of "use," it found them sufficient to establish that he had "carried" the gun. Id. * 4.

Although Stanback was not carrying the gun at the time of his arrest, the facts as admitted in the plea agreement and in open court[ ] do support the inference that he had carried it at some time that night while he possessed the cocaine. First, at the time of the arrest, Stanback immediately admitted that the drugs, drug paraphernalia and the gun, which were all together on the table, were his. Second, the gun was immediately available to Stanback as he was "cutting" and packaging the cocaine--it was not hidden; it was not in another room. In light of these facts, it is reasonable to assume that Stanback carried the gun while he transported the cocaine, as he admitted at the time of his plea. Thus, there is a sufficient factual basis to support Stanback's plea and in turn, his conviction.

Id. The court accordingly denied Stanback's request for relief under section 2255.

II.

The steadily growing number of recent cases in which we have considered the validity of pre-Bailey convictions under section 924(c) makes it unnecessary for us to recount the facts and holding of Bailey at any length. It is sufficient to note that before Bailey, this circuit, like a number of others (see Bailey, --- U.S. at ----, 116 S.Ct. at 505), had concluded that the defendant's mere possession of a firearm or storage of a firearm in relatively close proximity to narcotics was sufficient to constitute a "use" of the firearm for purposes of section 924(c)(1). See United States v. Monroe, 73 F.3d 129, 132-33 (7th Cir.1995) (collecting cases). The Supreme Court in Bailey rejected that expansive view of "use," holding that one must "actively employ" the gun in relation to a drug trafficking offense--by "brandishing, displaying, bartering, striking with, and most obviously firing or attempting to fire" it, for example--before one may be said to have "used" the gun in violation of the statute. --- U.S. at ---- - ----, 116 S.Ct. at 508-09.

Stanback argues that the record underlying his guilty plea is not sufficient to establish either that he "used" a firearm in the sense that Bailey requires or that he handled it in any of the ways we have cited as examples of "carrying." At most, he reasons, the admitted facts indicate that his revolver merely "lay inert next to other materials on a table." Stanback Br. 13. That, he submits, does not constitute an active employment of the firearm. Nor do his admissions establish that he ever "carried" the revolver. Mere presence of the firearm in his apartment is not enough to establish "carrying" for purposes of section 924, he contends, and the record is devoid of any evidence that he had transported the revolver in connection with the narcotics offense to which he also pled guilty. The district court's supposition that he likely carried the gun at some point on the evening of his arrest is speculative in Stanback's view: "Based on this record, the gun and the drugs could have been sitting on that table for days." Stanback Br. 20. Thus, absent a more detailed set of admitted facts akin to the record before us in United States v. Damico, 99 F.3d 1431 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1086, 137 L.Ed.2d 220 (1997), we simply cannot sustain his conviction based...