U.S. v. Damico, 95-3594

• Decision Date: 08 November 1996
• Docket Number: No. 95-3594,95-3594
• Citation: 99 F.3d 1431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marco DAMICO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1431

99 F.3d 1431

UNITED STATES of America, Plaintiff-Appellee, v. Marco DAMICO, Defendant-Appellant.

No. 95-3594.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 1996.

Decided Nov. 8, 1996.

Barry Rand Elden, Chief of Appeals, John Burley, argued, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Thomas P. Sullivan, William A. VonHoene, Jr., argued, David Jimenea-Ekman, Jenner & Block, Chicago, IL, Allan A. Ackerman, Chicago, IL, for Defendent-Appellant.

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

ILANA DIAMOND ROVNER, Circuit Judge.

In a detailed plea agreement, Marco Damico admitted that for approximately fifteen years, he headed a criminal enterprise that regularly engaged in illegal acts such as extortion, armed robbery, and the operation of gambling and bookmaking businesses. He pled guilty to a series of charges addressed to these activities, the most serious being a conspiracy to conduct the affairs of the enterprise through a pattern of racketeering activity and the collection of unlawful debt in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). In furtherance of the RICO conspiracy, Damico also conspired to rob at gunpoint the participants in a card game scheduled to take place near Lake Geneva, Wisconsin in November 1989. He therefore also pled guilty to the charge of knowingly using or carrying a firearm during and in relation to a crime of violence, which carries a mandatory consecutive prison sentence of five years. 18 U.S.C. § 924(c)(1). After accepting Damico's guilty plea, the district court sentenced him to a prison term of 147 months--87 months for the RICO conspiracy to be followed by the mandatory 60-month term for the firearm conviction. In this appeal, Damico raises three challenges to that sentence. After oral argument, moreover, Damico requested and received permission to file a supplemental brief addressed to the impact on his firearm conviction of the Supreme Court's intervening decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We now affirm that conviction as well as the sentence imposed below.

I.

Count V of the government's superseding indictment charged Damico with conspiring to rob the participants in the Lake Geneva card game in violation of 18 U.S.C. § 1951. The government alleged that this conspiracy extended from October 3, 1988 to November 30 of the following year, and that Damico's primary co-conspirator in this endeavor was Robert M. Abbinanti. The indictment charged the conspirators with agreeing, at Damico's direction, that a .22 caliber handgun with a silencer would be provided to Abbinanti for use in the robbery. The indictment further alleged that Damico had discussed the robbery with government informant Robert Cooley, who apparently would be participating in the card game, and that in one of their conversations, Damico had stated that there would be no heroes once the card players were confronted with shotguns. According to the government, Abbinanti then traveled to Wisconsin with the silencer-equipped handgun on November 29, 1989, for the purpose of committing the robbery. For a variety of reasons, however, he never carried out the robbery. Count VI of the superseding indictment charged Damico and Abbinanti with violating 18 U.S.C. § 924(c)(1) by knowingly using or carrying the .22 caliber handgun with silencer during and in relation to the crime of violence (i.e., the conspiracy to commit robbery) charged in count V. (See R. 7 at 15-18.) Damico pled guilty to count V but not to count VI. He instead entered a plea of guilty to a one-count information also charging a section 924(c)(1) violation but omitting any mention of the silencer. (R. 197.) That meant that the mandatory consecutive sentence required by section 924(c)(1) was reduced from thirty years (for a silencer-equipped firearm) to five years. See 18 U.S.C. § 924(c)(1).

In a detailed plea agreement, Damico stipulated to many of the facts alleged in the indictment. He admitted, for example, that he had conspired with Abbinanti and others to commit the Lake Geneva robbery and that the conspirators had agreed that Abbinanti would use a firearm in the course of the robbery. (R. 203 at 10.) Damico further acknowledged that in planning the robbery, he had inquired of Cooley whether any of the card game participants would bring pistols to the game and then told Cooley "that there would not be any heroes when [they] saw the shotguns." (Id. at 11.) Damico agreed that his co-conspirators had then traveled to Lake Geneva and were prepared to commit the robbery as planned. He conceded, in fact, that Abbinanti had "carried" a firearm to Wisconsin for the specific purpose of committing the robbery. (Id.) In entering his guilty plea in open court, moreover, Damico acknowledged the accuracy of the facts to which he had stipulated in the plea agreement. (R. 224 at 31.) The district court found that these admissions provided an adequate factual basis for Damico's plea. (Id. at 33.) See Fed.R.Crim. P. 11(f) (court must satisfy itself of factual basis for a guilty plea).

Despite these admissions, Damico now asks that we vacate his firearm conviction and remand to enable the district court to consider whether a section 924(c)(1) violation actually occurred. That unusual request is prompted by the Supreme Court's decision in Bailey, which was released after the entry of Damico's plea below and after the filing of his opening brief here. The Supreme Court held in Bailey that a firearm is not "used" for purposes of section 924(c)(1) unless it is "actively employed" during and in relation to the underlying crime of violence. --- U.S. at ----, 116 S.Ct. at 509. The Court explained that "active employment" would include such acts as "brandishing, displaying, bartering striking with, and most obviously, firing or attempting to fire" the weapon, but would not encompass mere possession or storage, or the placement of the weapon nearby for later use, even if those acts served to embolden the defendant in committing the underlying offense. Id. at ---- - ----, 116 S.Ct. at 508-09. By requiring that a firearm be "actively employed" to qualify as a "use," Bailey significantly narrowed the scope that this circuit had previously accorded to section 924(c)(1). See, e.g., United States v. Gonzalez, 93 F.3d 311, 318 (7th Cir.1996); United States v. James, 79 F.3d 553, 553-54 (7th Cir.1996). Damico now seeks to take advantage of Bailey to invalidate his earlier plea. Conceding that an adequate factual basis existed to support a statutory violation under our pre-Bailey law, he asserts that after Bailey, it is unclear whether the conduct acknowledged in the plea agreement still would violate the statute. For this reason, he asks that we vacate his firearm conviction and remand to the district court for further proceedings. See United States v. Abdul, 75 F.3d 327, 329-30 (7th Cir.) (vacating plea for knowing use of firearm where the admitted conduct would not constitute a "use" under Bailey ), cert. denied, --- U.S. ----, 116 S.Ct. 2569, 135 L.Ed.2d 1085 (1996); see also United States v. Robinson, 96 F.3d 246, 254 (7th Cir.1996) (factual basis for guilty plea may be insufficient where government proffered only that the defendant "possessed numerous weapons" in connection with a narcotics conspiracy). After reviewing Damico's admissions in the plea agreement and at the plea hearing, however, we are convinced that Bailey does not undercut the factual basis for his plea.

The government alleged and Damico admitted that during and in relation to the robbery conspiracy, he caused Abbinanti both to use and to carry a firearm. Although he thus admitted to violating both the "use" and "carry" prongs of section 924(c)(1), a violation of either prong would be sufficient, for the statute is phrased in the disjunctive. In narrowing the scope of the statute's "use" prong in Bailey, the Supreme Court emphasized that conduct not rising to the level of a "use" may still fall within the separate "carry" prong. --- U.S. at ----, 116 S.Ct. at 509; see also United States v. Booker, 73 F.3d 706, 709 (7th Cir.1996) (Bailey 's holding "does not limit the 'carry' prong of § 924(c)."). Indeed, the need to preserve some independent meaning for the term "carry" proved central to the Court's construction of a "use," for the Court found nothing to indicate that Congress intended the two terms to be redundant. Bailey, --- U.S. at ---- - ----, ----, 116 S.Ct. at 506-07, 509. The Court explained that:

Under the interpretation we enunciate today, a firearm can be used without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction.

Id. at ----, 116 S.Ct. at 507. Thus, although neither of the two defendants in Bailey had "used" a firearm in the active-employment sense, the Court remanded for consideration of whether their convictions could be upheld under the separate "carries" prong. Id. at ----, 116 S.Ct. at 509. Following that directive, this court has affirmed section 924(c)(1) convictions in the post-Bailey era where "the uncontested actions of a defendant clearly fit the definition of 'carry,' " even if they may not also qualify as a "use." See Gonzalez, 93 F.3d at 321 (discussing United States v. Baker, 78 F.3d 1241 (7th Cir.1996)); see also Booker, 73 F.3d at 709.

The government believes that is the case here, and unfortunately for Damico, we must agree. Not only did Damico generally admit to violating section 924(c)(1) both in his plea agreement and before the district court at the plea hearing, but he also acknowledged that in furtherance of the charged conspiracy,...