Warner v. US, LR-C-96-220

• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
• Writing for the Court: EISELE
• Citation: 926 F. Supp. 1387
• Docket Number: LR-C-96-220,LR-CR-88-84.
• Decision Date: 13 May 1996
• Parties: Troy Lee WARNER, Defendant, v. UNITED STATES of America, Plaintiff.

926 F. Supp. 1387

Troy Lee WARNER, Defendant,
v.
UNITED STATES of America, Plaintiff.

LR-C-96-220, LR-CR-88-84.

United States District Court, E.D. Arkansas, Western Division.

May 10, 1996.

Order Supplementing Opinion May 13, 1996.

926 F. Supp. 1388

COPYRIGHT MATERIAL OMITTED

926 F. Supp. 1389

Troy Lee Warner, FPC Eglin, AFB, FL, pro se

Robert Govar, Assistant U.S. Attorney, Little Rock, AR, for U.S.

MEMORANDUM OPINION AND ORDER MODIFYING JUDGMENT AND COMMITMENT

EISELE, District Judge.

Before the Court is defendant Troy Lee Warner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed on March 21, 1996. Defendant is currently incarcerated

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at the federal correctional institution at Elgin Air Force Base, Florida. The Court reviewed Warner's motion and ordered the Government to respond, see 28 U.S.C. § 2255, Rule 4(b), and the Government filed its response on April 15, 1996. This motion is thus ripe for disposition

I. BACKGROUND

On November 22, 1988, a jury found defendant guilty of conspiracy to possess marijuana, with intent to distribute, in violation of 21 U.S.C. § 846, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (hereinafter referred to as his "Drug-Related Convictions"). The jury also found defendant guilty of using a machine gun during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).¹ On January 30, 1989, the Court sentenced defendant to a Guideline sentence of seventy eight months for each of the Drug-Related Convictions, to be served concurrently with each other, and a mandatory consecutive 120-month sentence for the § 924(c)(1) count.² To date, defendant has completed his sentence for the two Drug-Related Convictions, and has served approximately fifteen months of his 120-month sentence for the § 924(c)(1) count.³

II. APPLICATION OF BAILEY

In his present § 2255 motion,⁴ defendant argues that his conviction under § 924(c)(1) cannot stand in light of the Supreme Court's recent decision Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The Government, and the Court, agree with this position.

18 U.S.C. § 924(c)(1) imposes severe criminal penalties upon any person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm." In 1988, defendant was found guilty of "using" a machine gun in violation of § 924(c)(1) by having a loaded machine gun within two to three feet from him at the time of his arrest. At the time of that guilty verdict, and under then-controlling Eighth Circuit precedent, the facts under which the jury found defendant

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guilty were sufficient to establish a violation of § 924(c)(1). See United States v. Young-Bey, 893 F.2d 178, 181 (8th Cir.1990) (proof that guns were found under a mattress in the same room as five bags of crack cocaine was sufficient to show a violation of § 924(c)(1)). Indeed, until recently, this circuit only required proof that a weapon was "present and available, in the event that it was needed, in the residence in which drugs and cash were located" to sustain a § 924(c)(1) conviction. United States v. Felici, 54 F.3d 504, 506 (8th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 251, 133 L.Ed.2d 176 (1995)

However, on December 6, 1995, the Supreme Court decided Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), in which the High Court clarified how the term "use" is to be interpreted in the context of § 924(c)(1). The Supreme Court described "use" as connoting the "`active employment' of a firearm," including "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at ___, 116 S.Ct. at 508. The Court specifically held that "use" did not include concealing a firearm "nearby to be at the ready for an imminent confrontation." Id. The Court characterized such action as "storage" and as "not readily distinguishable from possession." Id.

Bailey rests on tenets of statutory construction and announces a reading of § 924(c)(1) which is narrower than the interpretations of the statute adopted by the lower courts. Id. at ___ - ___, 116 S.Ct. at 506-508. Because Bailey operates to expose the errors made by lower courts in interpreting the substance of § 924(c)(1), the Court finds that Davis v. United States, 417 U.S. 333, 345-47, 94 S.Ct. 2298, 2304-06, 41 L.Ed.2d 109 (1974), is applicable to defendant's case, and that relief under § 2255 is therefore available to secure relief from that conviction.⁵ In Davis, the Supreme Court held that collateral relief from a federal criminal conviction is available under § 2255 when there has been an intervening change in the substantive criminal law such that it is now clear that the defendant's conviction and punishment are for conduct which the law does not regard as criminal. Id. at 346-47, 94 S.Ct. at 2305-06. In the wake of Bailey, to allow defendant's § 924(c)(1) conviction to stand would "`result in a complete miscarriage of justice' and would `present exceptional circumstances' that justify collateral relief under § 2255." Ibid. Accordingly, the Court joins those other courts that have given Bailey retroactive effect in § 2255 proceedings. See, e.g., United States v. Brown, 914 F.Supp. 1380, 1381 (E.D.La.1996); United States v. Turner, 914 F.Supp. 48, 49-50 (W.D.N.Y.1996); Abreu v. United States, 911 F.Supp. 203, 207 (E.D.Va.1996); see also Sanabria v. United States, 916 F.Supp. 106, 111-14 (D. Puerto Rico 1996) (giving Bailey retroactive effect under Teague).

III. RELIEF UNDER § 2255

28 U.S.C. § 2255 provides that a court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Thus, in light of Bailey, and after reviewing the evidence in the light most favorable to the Government, see United States v. Manzer, 69 F.3d 222, 226 (8th Cir. 1995), it is clear that defendant was not, in fact, guilty of a violation of § 924(c)(1). Indeed, the Government, on the first page of its brief, concedes as much. Therefore, the Court will vacate the § 924(c)(1) conviction and then consider what further action, if any, might be appropriate.

IV. RESENTENCING ON THE DRUG RELATED-CONVICTIONS?

The Government asks this Court, if it grants defendant's motion for relief on the § 924(c)(1) count, to recalculate his sentence and to enhance his sentence on the two drug counts for firearm possession under U.S.S.G. § 2D1.1(b)(1). The Sentencing Guidelines

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that applied at the time of defendant's convictions provided (and continue to provide) for a two-level increase in offense level "if a dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1) (1987). This adjustment "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, Application Note 3 (1987). "The defendant need not have had personal possession, or even actual knowledge of the weapon's presence; the enhancement is required so long as the possession of the firearm was reasonably foreseeable to the defendant." United States v. Stevens, 985 F.2d 1175, 1188 (2nd Cir.1993) (internal quotation marks omitted). The facts presented to the Court at the time of sentencing clearly would have warranted such an enhancement. However, in defendant's case the enhancement was not imposed because he was charged and convicted under section 924(c)(1), and to have done so would have been "double counting." See U.S.S.G. § 2K2.4, Application note 2 (1987); United States v. Howard, 998 F.2d 42, 48 (2nd Cir.1993)

The Government cites several cases in support of its position that the Court should now resentence defendant on his Drug-Related Convictions by adding this two-point sentence enhancement, and hence increasing his sentence on those counts. For a number of reasons that will be discussed below (none of which have been adequately addressed by the Government), the Court concludes that it would be improper to resentence defendant on those counts.

1. Double Jeopardy

None of the cases cited by the Government address the double jeopardy issue which, in the Court's view, arises under the facts of this case. In this case, defendant has already served the previously imposed sentence for his Drug-Related Convictions,⁶ and that sentence has not been placed directly in issue in this proceeding (which involves a collateral attack and not a direct appeal).⁷ The Court does not believe, in this § 2255 proceeding, that it may now reconsider defendant's original sentence on the drug-related counts. Contra Sanabria v. United States, supra, 916 F.Supp. at 114-15.⁸ Simply put, the Court concludes that it may not impose an additional penalty for those violations after the original sentence imposed thereon has been fully served. To do so in this context would, in the Court's view, be violative of the Double Jeopardy Clause.⁹

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The Court recognizes that, under the "sentence package" rule, a sentencing court can modify the sentence imposed upon the individual counts of a multi-count conviction where the defendant has succeeded in challenging less than all of those convictions on direct appeal.¹⁰ United States v. Pimienta-Redondo, supra, 874 F.2d at 16; United States v. Shue, 825 F.2d 1111, 1114-15 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987); United States v. Rosen, 764 F.2d 763, 766-67 (11th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986); see also United States v. McKnight, 17 F.3d 1139, 1144-46 n. 8 (8th Cir.) (opinion of Lay, J., not joined by Magill & Hansen, JJ.), cert. denied, ___ U.S. ___, 115 S.Ct. 275, 130 L.Ed.2d 192 (1994). However, the Double Jeopardy Clause prevents the sentencing...