Dennis L. Barrett v. United States

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-1625
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Dennis L. Barrett, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
United States of America, *
* [PUBLISHED]
Appellee. *
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Submitted: July 22, 1997
Filed: July 29, 1997
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Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Dennis L. Barrett appeals from the district court's1 denial of his motion under 28
U.S.C. § 2255. We affirm.
In 1992, Dennis Barrett pleaded guilty to a number of offenses, including aiding
and abetting the use and carrying of a firearm in relation to drug offenses, in violation
of 18 U.S.C. §§ 924(c) and 2. The district court imposed a 60-month prison sentence
1
The Honorable Russell G. Clark, Jr., United States District Judge for the
Western District of Missouri.
on the weapon charge, consecutive to the prison sentence he received on other charges,
and three years supervised release. Barrett did not file a direct appeal. Barrett later
filed this section 2255 motion, arguing that, in light of Bailey v. United States, 116 S.
Ct. 501 (1995), his firearm conviction should be vacated.
We note initially that Barrett may have waived and procedurally defaulted this
claim by pleading guilty and not appealing. See Bousley v. Brooks, 97 F.3d 284, 287
(8th Cir. 1996), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Mar. 18, 1997) (No.
96-8516). The district court reached the merits, however, and we agree with the court
that the claim is meritless. See Rogers v. United States, 1 F.3d 697, 699 (8th Cir.
1993) (per curiam).
The record shows Michael Gilstrap, Barrett's codefendant, was carrying a
firearm in the waistband of his pants at the time he sold drugs to an undercover agent.
See Bailey, 116 S. Ct. at 507-09 (preserving "carrying" as alternative basis for
§ 924(c)(1) charge); United States v. White, 81 F.3d 80, 83 (8th Cir. 1996) ("carry"
means to bear firearm on or about one’s person). Barrett admitted at his guilty-plea
hearing that he gave Gilstrap the revolver intending for Gilstrap to take it with him
while distributing cocaine Barrett had given to Gilstrap. See United States v. Simpson,
979 F.2d 1282, 1285 (8th Cir. 1992) (where another person robbed bank using firearm,
and defendant provided transportation and means of concealment and knew other
person planned to use gun in committing robbery, robber’s gun became defendant’s in
eyes of law), cert. denied, 507 U.S. 943 (1993).
We disagree with Barrett that a defendant may not be found guilty of a section
924(c)(1) offense as an aider and abettor. We have recognized that a defendant who
did not personally use or carry a firearm may be found guilty of violating section
924(c)(1) under an aiding-and-abetting theory, see id. at 1285-86, and have recently
held that Bailey does not preclude the continued application of a coconspirator theory
of liability to section 924(c)(1) offenses, see United States v. Rodger, 100 F.3d 90, 91
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n.2 (8th Cir. 1996) (per curiam), petition for cert. filed, __U.S.L.W.__ (U.S. June 23,
1997) (No. 96-9502). We conclude the same holds true for aiding-and-abetting
liability. See United States v. Giraldo, 80 F.3d 667, 676-77 (2d Cir.), cert. denied, 117
S. Ct. 135 (1996).
Barrett nonetheless insists he was not convicted as an aider and abettor. We
disagree. Although his written judgment does not recite 18 U.S.C. § 2--the aiding-and-
abetting statute--Barrett acknowledged at his plea hearing that he was pleading guilty
to aiding and abetting the section 924(c)(1) offense, as alleged in the indictment, and
the district court accepted his plea and stated that judgment would be entered
accordingly. Cf. United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994) (oral
pronouncement by sentencing court is judgment of court); United States v. Glass, 720
F.2d 21, 22 n.2 (8th Cir. 1983) (when oral sentence and written judgment conflict, oral
sentence controls). Finally, we reject Barrett’s argument that his guilty plea was not
knowing and voluntary. See Walker v. United States, No. 96-2086, 1997 WL 298449
(8th Cir. June 6, 1997).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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