U.S. v. McKinney, 95-2132

• Decision Date: 16 July 1997
• Docket Number: No. 95-2132,95-2132
• Citation: 120 F.3d 132
• Parties: UNITED STATES of America, Appellee, v. Allen H. McKINNEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 132

120 F.3d 132

UNITED STATES of America, Appellee, v. Allen H. McKINNEY, Appellant.

No. 95-2132.

United States Court of Appeals Eighth Circuit.

Submitted June 27, 1997.

Decided July 16, 1997.

Andrew Herbert Mohring, Assistant Public Defender, Minneapolis, MN, argued, for appellant.

Jeffrey S. Paulsen, Assistant U.S. Attorney, Minneapolis, MN, argued, for appellee.

Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

This case comes before us for a second time. In United States v. McKinney, 79 F.3d 105 (8th Cir.1996), we held that Mr. McKinney was not entitled on appeal to the benefit of the rule announced in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), a case decided after his conviction, because at trial he did not raise the legal point that Bailey subsequently decided in his favor. The Supreme Court granted Mr. McKinney's petition for certiorari in that case, vacated our judgment, and remanded the case to us for further consideration in light of Johnson v. United States, --- U.S. ----, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). See McKinney v. United States, --- U.S. ----, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997). Having undertaken a further consideration of the case as directed, we reverse Mr. McKinney's conviction for using or carrying a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1) and remand the case for resentencing. We believe that in our prior opinion in this case we properly resolved the other matters that Mr. McKinney raised on appeal, see United States v. McKinney, 79 F.3d at 107-08, and we adopt that opinion to the extent that it dealt with those other matters.

I.

In Johnson, --- U.S. at ----, 117 S.Ct. at 1549, the Supreme Court decided that a court of appeals ought to engage in "plain error" review under Fed.R.Crim.P. 52(b) with respect to legal principles not recognized at the time of the relevant trial, but recognized before the appeal was decided, because otherwise trial counsel might well feel obligated to make "a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent." We therefore proceed to evaluate the trial court's performance under a plain error standard.

In United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993), on which Johnson relied, the Court held that to prevail on a claim of plain error an appellant must first show that the error complained of was "clear" or "obvious." In this case, Mr. McKinney argues that the error lay in submitting the gun charge to the jury because under Bailey the evidence was simply insufficient to convict him of "using" a weapon and because no submissible case was made that he was "carrying" one.

The evidence bearing on the weapons charge against Mr. McKinney can be briefly summarized. Mr. McKinney kept several guns in his heavily fortified compound in a room from which he monitored video cameras that were placed strategically so as to allow him to observe anyone approaching his building. As the government puts it in its supplemental brief, "the four assault weapons from the control room formed the basis for the defendant's conviction under 18 U.S.C. § 924(c)" because he was operating "an armed drug fortress" on the day that he was raided. The government argues that the operation of an armed fortress in and of itself amounts to a use of weapons sufficient to satisfy the requirement of Bailey. We disagree.

Before the decision in Bailey, we had indeed held that a person who maintains and operates an armed fortress for selling drugs was using guns within the meaning of § 924(c). See, e.g., United States v. Angell, 11 F.3d 806, 810 (8th Cir.1993), cert. denied, 512 U.S. 1239, 114 S.Ct. 2747, 129 L.Ed.2d 865 (1994), and United States v. Matra, 841 F.2d 837, 842-43 (8th Cir.1988). The rule of these cases, however, cannot survive the holding in Bailey, which requires a showing that a weapon was actively deployed before it can be said to have been used within the meaning of the relevant statute. The Court remarked in Bailey, --- U.S. at ---- - ----, 116 S.Ct. at 505-06, that the statement "I use a gun to protect my house, but I've never had to use it" (emphasis in original) demonstrated two different usages of the relevant word, but, the Court held, only the second, more specific of the two kinds of use fell within the reach of the statute. We thus believe that the government's evidence in this case, as the government itself characterized it, did not make out a submissible case on the question of whether Mr. McKinney used a gun within the meaning of § 924(c), because the government relies on the mere presence of weapons in a building to support the conviction.

Nor can we say that the evidence in this case was sufficient to support a conviction for carrying a weapon. Though the Court in Bailey did not reach the question of the meaning of the word "carry" in § 924(c), our court has had occasion to consider the matter in several recent cases. In all of the cases in which we have upheld convictions for carrying guns during or in relation to a drug-trafficking offense, the defendant has had the weapon either in a car's hatchback, in the passenger compartment of a car, or on his person, and was thus carrying the offending weapons in an obvious, literal way. See United States v. Nelson, 109 F.3d 1323, 1325 (8th Cir.1997); United States v. Caldwell, 97 F.3d 1063, 1066 (8th Cir.1996); United States v. Willis, 89 F.3d 1371, 1375 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996); and United States v. White, 81 F.3d 80, 83 (8th Cir.1996). Our cases have emphasized ordinary dictionary definitions of the word "carry": We have said that it means to have on one's person, to transport, to remove, or to convey. See, e.g., Nelson, 109 F.3d at 1326, and White, 81 F.3d at 83. There is no evidence in this case that Mr. McKinney had any guns on his person, or transported or conveyed them in any way, during or in relation to a drug offense.

Having a gun available for use, even an immediate use, is simply not the equivalent of carrying it. If it is not being transported at some relevant time, it is not being carried. The difference between having a gun at the ready in a building and having one available in an automobile may, from some perspectives, seem insubstantial, but the statutory line has to be drawn somewhere, else the offense of carrying a weapon might virtually swallow the offense of possessing one, and Congress has drawn a distinction between the two activities. Cases on either side of a line dividing...