UNITED STATES v. FOSTER (1996)

Defendant-appellant, Leon Clifford Foster, has moved for reconsideration of his conviction for possession of a firearm during and in relation to a drug transaction in violation of 18 U.S.C. § 924(c) in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).   Appellant's conviction for possession of methamphetamine was affirmed in our memorandum disposition on October 16, 1992;  appellant's conviction for participation in a drug conspiracy was initially reversed and subsequently affirmed in our decision at 57 F.3d 727 (9th Cir.1995).   Thus, the sole issue before the court is whether appellant's § 924(c) conviction should stand in light of Bailey.

Given the facts presented, there is no question that appellant did not “use” the weapon under Bailey.   Defendant contends that he also did not “carry” a weapon under United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996), because the gun was not on or about his person or immediately available for his use.

To “carry” a firearm under 924(c), a defendant “must have transported the firearm on or about his or her person ․ This means the firearm must have been immediately available for use by the defendant.”  Hernandez, 80 F.3d at 1258.

Two recent decisions are instructive.   In United States v. Mua, 87 F.3d 1101 (9th Cir.1996), the defendant was convicted of a § 924(c) charge under jury instructions which erroneously (following Bailey ) explained that the jury could premise a conviction upon a finding that the firearm was “available to assist or aid” in the drug trafficking offense.   We found no evidence that the defendant had “used” a firearm, but upheld the conviction on the ground that the facts left “no doubt” that the defendant had “carried” the firearm since the defendant was alone in a car with a loaded firearm located in an open duffle bag in the front passenger side of his car.   Further, at the time of his arrest, Mua acknowledged to the officers that he had a weapon and reached for it during the interview.   In United States v. Staples, 85 F.3d 461 (9th Cir.1996), amended, June 28, 1996, we affirmed a conviction following Bailey where the defendant specifically admitted to carrying a firearm during and in relation to a drug trafficking offense in his plea agreement.

In this case police discovered a loaded pistol in the back of the defendant's truck at the time of his arrest.   The gun was located near a bucket which contained the O'Haus scale, baggies and handwritten notes which appeared to be drug sale related.

Given the placement of the weapon near the drug paraphernalia, there is clearly evidence to support a finding that the weapon was carried “during and in relation to” the drug offense.   However, the critical issue here is whether the appellant's firearm was “immediately available for use” under Hernandez.   In Hernandez we held that a weapon located in a locked toolbox in a garage was not used or carried for purposes of a 924(c) conviction.   By contrast, we found that the weapon possessed in Mua was “immediately available for use,” where it was loaded and located in a bag on the floor of the passenger compartment of the car Mua was driving.   Further, Mua had told the officers that he had a weapon and reached for the bag.   The facts in this case fall somewhere between Hernandez and Mua.   Because the firearm in this case was located in the back of the appellant's pickup truck, we find that it was more akin to the gun located in a locked toolbox in the garage and thus, not immediately available for use.

Accordingly, defendant's conviction pursuant to 18 U.S.C. § 924(c) is REVERSED and his sentence on that count is VACATED.

MARSH, District Judge: