United States v. Eric Taylor A/K/A "Shug" , 102 F.3d 767 ( 1997 )

The court delivered a PER CURIAM opinion. HILLMAN, D.J. (pp. 771-76), delivered a separate dissenting opinion.

PER CURIAM.

On April 6, 1994, defendant Eric Taylor was convicted by a jury of two counts of possession with intent to distribute cocaine base, in violation of various federal statutes, and of one count of using or carrying a firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Defendant appealed his convictions and sentence on several grounds. This Court affirmed the convictions, but remanded the case to the district court for resentencing. United States v. Taylor, 66 F.3d 327 (6th Cir.1995) (unpublished decision).

Defendant thereafter filed a petition for writ of certiorari with the Supreme Court. On February 20, 1996, the Supreme Court granted the petition, vacated this Court’s judgment and remanded. the case to this Court for further consideration in light of Bailey v. United States, — U.S. -, 116 S.Ct. 601, 133 L.Ed.2d 472 (1995), issued subsequent to this Court’s opinion on direct appeal. Taylor v. United States, — U.S. -, 116 S.Ct. 900, 133 L.Ed.2d 834 (1996). We requested and received supplemental briefs from the parties, which we have now considered. For the reasons stated below, we now AFFIRM defendant’s convictions.

DISCUSSION

At issue on remand is Taylor’s conviction for violating 18 U.S.C. § 924(c)(1), which subjects to criminal liability a person who “during and in relation to any ... drug trafficking crime ... uses or carries a firearm.” In Bailey, — U.S. -, 116 S.Ct. 501, the Supreme Court interpreted the language of § 924(c)(1) and concluded that, to be convicted of either “using” or “carrying” a firearm under the statute, a defendant must do more than merely possess or store a firearm. The Bailey Court’s interpretation of the statute overturned settled circuit precedent that evidence of possession alone is sufficient to support a conviction under § 924(c)(1).

On remand, Taylor asserts that, after Bailey, there was insufficient evidence to convict him of either “using” or “carrying” a firearm under § 924(c)(1). While the government concedes that there was insufficient evidence in this case to support Taylor’s conviction under the “use” prong of § 924(e)(1), it contends that there was sufficient evidence to support a conviction under the “carrying” prong of the statute. The government further argues that, because Taylor failed to object to the jury instructions, the instructions should be reviewed for plain error. It contends that, taking the instructions as a whole, there was no plain error and the conviction for carrying a firearm should be affirmed.

A. Sufficiency of the Evidence

Although the government’s concession that there was insufficient evidence to convict Taylor of “use” of a firearm does not automatically govern this Court’s disposition, see, e.g., Gibson v. United States, 329 U.S. 338, 344 n. 9, 67 S.Ct. 301, 304 n. 9, 91 L.Ed. 331 (1946), that concession unquestionably is correct. Under Bailey, a conviction under the use prong of § 924(e)(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.” — U.S. at -, 116 S.Ct. at 505 (emphasis in the original); see United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.), cert. denied, — U.S. -, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). The instant case is devoid of evidence that defendant used any firearm within the meaning of Bailey.

Defendant contends that the evidence also was insufficient to support a conviction for “carrying” under § 924(e)(1). Bailey not only addressed the definition of “using” a firearm, but also “provide[d] some guidance regarding the correct application of the ‘carry’ prong of section 924(c)(1).” Riascos-Suarez, 73 F.3d at 623. Following Bailey, in order to support a conviction for carrying a firearm in violation of § 924(c)(1), “the firearm must be immediately available for use— on the defendant or within his or her reach.” Riascos-Suarez, 73 F.3d at 623. Subsequently, in United States v. Moore, 76 F.3d 111, 113 (6th Cir.1996), this Court clarified its decision in Riascos-Suarez, holding that immediate availability was a necessary but alone not a sufficient predicate for a conviction for carrying a firearm. The Moore court held that the government must prove both that the weapon was immediately accessible to the defendant and that the defendant was in the process of transporting the firearm during and in relation to a drug trafficking crime. Moore, 76 F.3d at 113.

In the instant case, Taylor was arrested after the vehicle in which he was a passenger was stopped. At the time of his arrest, Taylor had 9.5 grams of cocaine base in his pants pocket. Another 6.6 grams was found in an open purse behind the driver’s seat. A loaded semi-automatic pistol was found under the front passenger seat in the vehicle, the seat Taylor occupied. The arresting officers testified that the vehicle conducted evasive maneuvers while it was being followed. Officer Randy Smith testified that he observed Taylor repeatedly look back at the unmarked vehicle following him. Smith testified that he observed Taylor make a number of unusual and erratic movements inside the car during the time he was being followed. While the officers could not see Taylor’s specific actions, they observed Taylor twice lean forward “as if he were — he was reaching underneath the seat.”

Such evidence is sufficient to raise the reasonable inference that Taylor was knowingly transporting the weapon during and in relation to his possession of cocaine base. In addition, a jury could conclude that the handgun was available for immediate use by Taylor when located under his seat in the vehicle. See Riascos-Suarez, 73 F.3d at 623 (finding that the presence of a loaded firearm in the console of defendant’s vehicle was sufficient to support an Alford plea under the “carrying” prong of § 924(c)(1)). We therefore conclude that the government offered sufficient evidence for the jury to conclude that Taylor was carrying a firearm during and in relation to a drug trafficking crime.

B. Jury Instructions

Having concluded that the facts of this case would support a conviction under § 924(c)(1) for carrying a firearm but not for using a firearm, the question remains whether the jury was properly instructed as to the elements of ah offense under section 924(e)(1). Because defendant made no objection, the instructions are reviewed for plain error. Fed.R.Crim.P. 52(b); see United States v. Olano, 507 U.S. 725, 730-31, 113 S.Ct. 1770, 1775-76, 123 L.Ed.2d 508 (1993).

In order to find plain error, an appellate court must make three determinations. First, it must conclude that the district court committed unwaived error. Olano, 507 U.S. at 732-34, 113 S.Ct. at 1776-78. Second, the error must be plain, that is, clear and obvious under current law. Id. at 734, 113 S.Ct. at 1777-78. Third, the court must find that the error affected a substantial right of the defendant by prejudicially influencing the outcome of the district court proceedings. Id. at 734-35, 113 S.Ct. at 1777-78. Where these conditions are met, the court will find plain error if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)); see United States v. Thomas, 11 F.3d 620, 629-30 (6th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1570, 128 L.Ed.2d 214 (1994).

Here, the district court instructed the jury as follows:

Three essential elements are. required to be proved beyond a reasonable doubt in order to establish the offense of unlawfully carrying a firearm charged in Count[s 3 and] 5 of the indictment:

First, the defendant committed a drug trafficking offense.

Second, the defendant knowingly carried a firearm during and relation to that drug trafficking offense....

Regarding Count 5, the second element of the offense requires proof beyond a reasonable doubt that the defendant Eric Taylor knowingly used or carried a firearm during or in relation to the count, Count 4 drug trafficking offense discussed in the first element of this offense.

. The Government need not show that the defendant actually carried the firearm on ,his person. The Government need only show that the — that the defendant had possession of the weapon in the — in the sense that he had both the power and the intention, at a given time, to exercise dominion or control over it....

To prove that the firearm was used or carried quote during or in relation to a drug trafficking crime, the Government must prove beyond a reasonable doubt that the using or carrying of the firearm facilitated, or had the potential for facilitating, the commission of the offense. In other words, if the possession of a firearm was merely inadvertent or unrelated to the crime and neither played a role nor had the potential for playing a role in the crime, then you may not convict' the defendant ...

The mere presence of the — the accused in a motor vehicle .. where firearm [is] found is insufficient to establish that the accused knowingly possessed such weapons ...

Thus, the jury could convict Taylor if it found that he “had possession of the weapon ... in the sense that he had both the power and intention, at a given time, to exercise the dominion or control over it.” As previously noted, after Bailey, possession of a firearm is not sufficient to support a conviction under § 924(c)(1). Bailey, — U.S. at -, 116 S.Ct. at 505. . Consequently, the instruction as given, while correct at the time of trial, is erroneous after Bailey. Moreover, there was no waiver of the error as the Supreme Court has defined “waiver.” See Olano, 507 U.S. at 733, 113 S.Ct. at 1777 (distinguishing “waiver,” which constitutes “intentional relinquishment or abandonment of a known right,” from “forfeiture,” which is a “failure to make the timely assertion of a right”).

The second determination, whether the error is clear under current law, raises a question expressly left unanswered by Olano—whether “current law” means the law as it existed at the time of trial or the law at the time of the appeal. See Olano, 507 U.S. at 734, 113 S.Ct. at 1777 (declining to consider “the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified”). Most other circuits that have directly addressed this issue have concluded that “current law” as used in plain error analysis means the law current at the time of the appeal, not at trial. See United States v. Baumgardner, 85 F.3d 1305, 1308 (8th Cir. 1996); United States v. Ross, 77 F.3d 1525, 1539 (7th Cir.1996); United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995); United States v. Retos, 25 F.3d 1220, 1230 (3d Cir.1994); see also United States v. Washington, 12 F.3d 1128, 1139 (D.C.Cir.), cert. denied, — U.S. -, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994) (holding that an appellate court may consider issues not raised at trial where a supervening decision has changed the law in appellant’s favor and the law was so well-settled at the time of trial that any attempt to change it would have appeared pointless). Id. at 1139 (citing cases).

We too conclude that “current law” for purposes of plain error analysis is the law existing at the time of review. This approach is consistent with practical considerations of judicial proceedings. Baumgardner, 85 F.3d at 1308; see United States v. David, 83 F.3d 638, 644-45 (4th Cir.1996) (acknowledging that requiring an objection contrary to then-existing precedent would not serve the orderly administration of justice that underlies the contemporaneous objection rule of Fed.R.CRIM.P. 52(b)). Under the present state of the law, the error in the instruction is clear.

Although the District Court committed un-waived error and that error is clear under current law, we are unable to say that the error has affected Taylor’s substantial rights by prejudicially influencing the outcome of the trial proceedings. Instead, we conclude that a properly instructed jury would have returned a guilty verdict under the “carry” prong of 18 U.S.C. § 924(c)(1).

In order for a defendant to be convicted of carrying a firearm in violation of § 924(e)(1), the defendant must have physically transported the firearm in relation to the drug-trafficking crime and the firearm must have been immediately available for use. Moore, 76 F.3d at 113; Riascos-Suarez, 73 F.3d at 623. Here, the gun, which was loaded and under the defendant’s seat, was easily within his reach and available for immediate use. See United States v. Baker, 78 F.3d 1241, 1248 (7th Cir.1996) (finding that a properly instructed jury would have concluded that the defendant was carrying the gun located under the driver’s seat, easily within defendant’s reach, and. available, for immediate use); Riascos-Suarez, 73 F.3d at 623 (holding that a gun placed in the console of a vehicle was immediately available for use). Further, to find that the defendant used or carried a firearm in violation of 18 U.S.C. § 924(c)(1), the district court required the jury to find that the gun had a role or potential role in the drug-trafficking crime. A reasonable juror who found that the gun had a role or potential role in the drug-trafficking crime charged in count 4, possession of cocaine with intent to distribute, could only conclude that the gun was being transported during and in relation to that crime. Because a properly instructed jury would have concluded that defendant physically transported a firearm that was immediately available for use, the error did not affect a substantial right of the defendant and, therefore, we find no plain error in the jury instructions.¹ Accordingly, we affirm Taylor’s conviction on the weapon charge.

CONCLUSION

For the foregoing reasons, Taylor’s conviction on count 5, the firearm count for violation of 18 U.S.C. §.924(c)(1), is hereby AFFIRMED and the remaining convictions are AFFIRMED in accordance with this Court’s original opinion.

1 . The dissent asks “at what distance from defendant would the majority concede, that whether a weapon was immediately available was a question of fact for the jury?” The question implies that the majority would take that question away from the jury. We would not. We merely conclude that any rational juror who had concluded that defendant possessed the gun, which could only be based on crediting testimony that he was seen reaching down as if putting the gun under the seat, would have to conclude that the gun was immediately available. The dissent also suggests that the jury could have found that the gun fortified the possession or distribution of cocaine base before or after it was being transported. There was, however, no evidence that defendant possessed this cocaine before the particular travel which was occurring at the , time of arrest.

While the dissent relies on United States v. Miller, 84 F.3d 1244, 1257 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 443, 136 L.Ed.2d 339 (1996), that case is distinguishable on its facts since the gun in that case was in a large black bag in the rear of the van. Even so, the court found that to be sufficient to submit to the jury as evidence of carrying, but remanded for a new trial because the evidence was not sufficiently compelling.

We also note that among the cases relied on by the Tenth Circuit are some where firearms under the seat or on passenger footboards are held to be immediately available. ,