December 13, 1995
MEMORANDUM
TO: All United States Attorneys
All Criminal Division Section Chiefs
FROM:John C. Keeney
Acting Assistant Attorney General
SUBJECT: Supreme Court's Decision in Bailey v. United States,
No. 94-7448 (December 6, 1995)
Under 18 U.S. C. § 924 (c) (1), a person who "during and in
relation to any crime of violence or drug trafficking crime * * * uses
or carries a firearm" is subject to a five-year minimum sentence. In
Bailey v. United States, the Supreme Court held that
conviction of a defendant for "use" of a firearm under Section 924(c)
requires "evidence sufficient to show an active employment
of the firearm by the defendant." The Court explained that "use" under
Section 924(c) (1) "includes brandishing, displaying, bartering,
striking with, and most obviously, firing or attempting to fire, a
firearm." In addition, "an offender's reference to a firearm in his
possession could satisfy § 924(c)(1), if it is "calculated to bring
about a change in the circumstances" of the underlying crime of violence
or drug trafficking crime.
The Court rejected the government's contention that "placement of a
firearm to provide a sense of security or to embolden" a defendant
constitutes "use" under the statute. Thus, the Court held that [j]urors are not
generally equipped to determine whether a
particular theory of conviction submitted to them is contrary to law --
whether, for example, the action in question * * fails to come within
the statutory definition of the crime"). Nevertheless, in light of the
Court's remand in Bailey for the district court to consider
whether the convictions could be upheld under the "carrying" prong of
Section 924(c), we should not abandon the "carrying" argument.
Resentencing: In cases in which a court of appeals relies
on Bailey to reverse a Section 924(c) conviction or grant relief
under Section 2255, we should argue that the defendant can be
resentenced on the other counts of conviction. Courts have generally
held that resentencing a defendant under these circumstances merely
"effectuate[s] the trial court's original sentencing intentions" and
does not violate the defendant's due process rights or place him in
double jeopardy. United States v. Pimienta-Redonde, 874
F.2d 9 (1st Cir.) (en banc), cert. denied, 493 U.S. 890 (1989);
see also United States v. Shue, 825 F.2d 1111 (7th
Cir. 1987), cert. denied, 484 U.S. 956 (1987); but see
United States v. Minor (9th Cir. 1988) (when court of
appeals reverses defendant's convictions on some counts, district court
may not resentence defendant on remaining counts unless authorized to do
so by court of appeals' mandate or Fed. R. Crim. P. 35); see
id. at 1189 n.5 (suggesting that government may "ask the court of
appeals to exercise its discretion" to order resentencing on counts that
were affirmed).
The Court observed in Bailey that the government "has other
means available to charge offenders who mix guns and drugs," noting that
"Sentencing Guidelines § 2D1.l(b)(1) provides an enhancement for a
person convicted of certain drug-trafficking offenses if a firearm was
possessed during the offense." As the Court's comment makes clear, the
Guidelines adjustment requires only possession, not "use," of a firearm.
Although the Guidelines prohibit application of the Section 2D1.l(b)(1)
adjustment to a defendant who was convicted for a violation of Section
924(c) as well as an underlying drug trafficking offense, see
Guidelines § 2K2.4, Application Note 2, when a defendant's Section
924(c) conviction is reversed and the case is remanded for resentencing
on an underlying drug trafficking conviction, we should point out that
the defendant is now eligible for the upward adjustment under Section
2D1.l(b)(1) and should ask that the adjustment be imposed.
Assistance: Questions about the effect of the
Bailey decision on charging decisions under Section 924(c) should
be directed to John DePue (202) 616-0725 and Stanley Rothstein (202)
616-3102 in the Terrorism and Violent Crime Section. Assistance in
responding to Bailey claims should be sought from the Appellate
Section liaison for your office.
[cited in USAM 9-63.500] |