United States v. Brent L. Smallwood, 156 F.3d 1245, 10th Cir. (1998)
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Scribd Government DocsUnited States v. Brent L. Smallwood, 156 F.3d 1245, 10th Cir. (1998)
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Scribd Government Docs156 F.
3d 1245
98 CJ C.A.R. 4567
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Brent L. SMALLWOOD, Defendant-Appellant.
No. 98-5012.
United States Court of Appeals, Tenth Circuit.
Sept. 2, 1998.
Before BRORBY, McKAY, and BRISCOE, Circuit Judges.
1ORDER AND JUDGMENT*
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Defendant Brent L. Smallwood was convicted of possession of a controlled
substance with intent to distribute, in violation of 21 U.S.C. 844(a), and using
or carrying a firearm while in the commission of a drug trafficking crime, in
violation of 18 U.S.C. 924(c). He did not appeal. He filed this motion to
vacate, set aside, or correct sentence under 28 U.S.C. 2255, arguing that his
conviction and sentence on the gun charge should be vacated in light of Bailey
v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). He
contends that it was improper for the jury to have been instructed on both
"using" and "carrying" a firearm because he was charged only with "carrying" a
firearm. See 18 U.S.C. 924(c). He also argues that the evidence was
insufficient to show he "carried" a firearm within the meaning of 924(c). The
district court denied relief, and defendant appeals. Defendant is representing
himself and proceeding in forma pauperis. He must obtain a certificate of
appealability (COA) to proceed on appeal. See 28 U.S.C. 2253(c)(1)(B). We
conclude that the district court correctly denied the 2255 motion. We
therefore deny defendant a COA and dismiss the appeal.
4
"[W]e review the district court's legal rulings on a 2255 motion de novo and
its findings of fact for clear error." United States v. Pearce, 146 F.3d 771, 774
(10th Cir.1998). In Bailey, the Supreme Court distinguished the "use" prong of
924(c) from the "carry" prong, defining "use" as requiring that the defendant
"actively employed the firearm during and in relation to the predicate crime."
Bailey, 516 U.S. at 150. Active employment "includes brandishing, displaying,
bartering, striking with, and most obviously, firing or attempting to fire, a
firearm." Id. at 148. "[A] reference to a firearm calculated to bring about a
change in the circumstances of the predicate offense is a 'use,' just as the silent
but obvious and forceful presence of a gun on a table can be a 'use.' " Id. The
Supreme Court did not define the "carry" prong in Bailey, but has recently
decided that " 'carry' implies personal agency and some degree of possession."
Muscarello v. United States, --- U.S. ----, ----, 118 S.Ct. 1911, 1917, 141
L.Ed.2d 111 (1998). "Carrying" is not limited to carrying a firearm on the
person, but includes carrying a firearm in a vehicle-even in the glove
compartment or trunk. See id. at 1913-14. This decision reaffirms our existing
holding that "carrying" requires that the defendant both possessed and
transported a firearm during and in relation to a drug trafficking crime. See
United States v. Spring, 80 F.3d 1450, 1465 (10th Cir.1996).
In this case, the jury was instructed that:
[t]he phrase "uses or carries a firearm["] means having a firearm or firearms,
available to assist or aid in the commission of the crime charged in count one of
the indictment.
In determining whether the Defendant used or carried a firearm, you may
consider all of the factors received in evidence in the case including the nature
of the underlying drug trafficking crime alleged, the proximity of the Defendant
to the firearm in question, the usefulness of the firearm to the crime alleged,
and the circumstances surrounding the presence of the firearm.
The government is not required to show that the Defendant actually displayed
or fired the weapon. The government is required, however, to prove beyond a
reasonable doubt that a firearm was in the Defendant's possession or under the
Defendant's control at the time the drug trafficking crime was committed.
9
R. doc. 38, at 3 (district court order).
10
We may affirm a conviction for "carrying" a firearm, despite jury instructions
which were incorrect under Bailey, if we are "absolutely certain that the jury
convicted solely under the 'carry' prong." United States v. Barnhardt, 93 F.3d
706, 709 (10th Cir.1996). Defendant does not dispute that the evidence showed
that he arrived at a vacant apartment under surveillance by police, knocked on
the door, was searched, and was found to have a firearm and a package of
cocaine on his person. See Appellant's Application for Certificate of
Appealability at 4. Thus, he cannot dispute that there was sufficient evidence to
show that he "carried" a firearm and no evidence to show that he "used" a
firearm within the meaning of 924(c). See Muscarello, --- U.S. at ---- - ----, ---, 118 S.Ct. at 1913-14, 1917; Bailey, 516 U.S. at 150. The government
conceded in the district court that the "use" instruction given in this case was
erroneous under Bailey because it stated that the government need not prove
that defendant displayed or brandished the firearm. In effect, the instruction
defined only "carrying," and the word "use" was completely extraneous.
Defendant does not argue that the "carry" instruction was incorrect. Therefore,
we are convinced that the jury convicted defendant under the "carry" prong of
924(c), and hold that the district court appropriately determined that the
incorrect "use" instruction was a harmless error. See 28 U.S.C. 2111 (stating
that court should ignore errors that do not affect "substantial rights" of the
parties).
11
DISMISSED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
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