United States v. Holland

116 F.3d 1353 (1997) United States Court of Appeals for the Tenth Circuit 1997-07-02

criminal, collateral review; jury conviction for using and carrying a firearm (affirmed on direct appeal in 1993); 28 U.S.C. 2255 motion claiming the conviction is invalid after Bailey; district court denied relief; defendant appeals; question is cause and actual prejudice from an erroneous "use" instruction where "carry" was also charged and correctly instructed (result: claimant-won)

Facts

  1. 3 Active employment of a firearm not no-evidence
    police officers observed five rounds of ammunition on the vehicle’s center console
  2. 3 Active employment of a firearm not no-evidence
    revealed a revolver registered to Mr. Kelly under the passenger seat plus drug paraphernalia and a small amount of cocaine found elsewhere in the vehicle
  3. 3 Active employment of a firearm not no-evidence
    In Bailey, the Supreme Court rejected such a broad definition of “use” and held that section 924(c)(1) “requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.”
  4. 3 Active employment of a firearm not no-evidence
    The Court also made clear that “use” does not extend to situations “where an offender conceals a gun nearby to be at the ready for an imminent confrontation.... Placement for later active use does not constitute ‘use.’”
  5. 3 Active employment of a firearm not no-evidence
    It is clear that under the construction of “use” employed in Bailey, the evidence in this case is legally insufficient to support a conviction for using a firearm during and in relation to a drug trafficking offense under section 924(c)(1).