UNITED STATES v. MUA (1996)

Zong Blong Mua had a gun in an open duffel bag on the floor of the front passenger's side of the rental car that he was driving to transport opium.   He was convicted of possession of opium with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and of using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1).

Mua was tried before the United States Supreme Court rendered its opinion in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which held that a defendant may be convicted for “use” of a firearm under § 924(c)(1) only when he “actively employs” it.¹  Applying our pre-Bailey law, the district court instructed the jury (without objection) that Mua could be found guilty of having “used or carried” the firearm if it was “available to assist or aid” in the commission of the drug offense.   On appeal, Mua argues that his conviction must be reversed because this instruction is plainly erroneous under Bailey.

 While we agree that “availability” no longer suffices to convict on the “use” prong of § 924(c)(1), this appeal requires us to consider the “carry” prong-which the holding in Bailey does not address-and to decide whether a defendant who is driving a car can be convicted of “carrying” a firearm that is within reach.   We conclude that a gun that is within reach of a person driving an automobile is “immediately available for use” and is therefore “on or about” his person for purposes of the “carry” prong of § 924(c)(1).   See United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996).

Because there is no question that this was the case here, we decline to reverse Mua's conviction on account of instructional error.   Mua also challenges his warrantless seizure and sentence, but we cannot say the district court erred in either respect.   We have jurisdiction, 28 U.S.C. § 1291, and affirm.

I

Around 7:20 in the evening on Saturday, October 8, 1994, Mua was driving east on Interstate 94 near Glendive, Montana.   Dawson County Sheriff's Deputy Wally Peter clocked Mua at 77 m.p.h. and pulled him over to issue a citation for speeding.   Mua's car had Washington license plates.   Mua was alone, admitted he was speeding, but explained that he was low on fuel and trying to get to a gas station.   Peter told Mua that he had to cite him, and then offered to follow Mua to the next gas station in Glendive to make sure he made it safely.   Peter then asked for Mua's license and registration, and Mua handed over a Washington driver's license and a car rental agreement from Seattle in response.

A check turned up no records of Mua's driver's license and no warrants.   Peter returned Mua's driver's license and car rental agreement, and told Mua that he was just being given an oral warning since Peter didn't have his citation book.

Peter again offered to follow Mua to the gas station.   Mua again explained why he was speeding, and told Peter he had driven a long way.   Mua had previously told Peter that he was going to Michigan to see his mother, who was sick, and Peter asked where he was travelling from.   Mua said Seattle.   Peter commented that the $650 cost of the rental car made it an expensive trip.   Mua said he was just driving trying to get there.   As they talked, Mua became nervous, took a deep breath, started shaking and breathing deeply, and avoided eye contact.   Peter noticed a sport coat hanging in the back of the car, an open duffel bag on the floor of the front passenger's side, a map on the passenger's seat, fast food wrappers scattered about, and a brief case on the rear floor on the driver's side.

Adding all this up, Peter's training led him to suspect that Mua might be transporting narcotics, so he asked if he were carrying weapons or drugs.   Mua said no.   Peter asked to search the car, and asked again if Mua had a weapon.   This time Mua said he did have a pistol, and started to reach for the open duffel bag on the front passenger side.   Peter asked him to get out, frisked him, and directed him to stand behind the car, then retrieved the pistol-which was loaded-from the duffel bag and retrieved Mua's driver's license, which was on the passenger seat.

After checking again for a record on Mua's license and the pistol, and turning nothing up, Peter again asked for, and got, Mua's permission to search the car.   Peter removed the briefcase, which was locked, and asked Mua if he could open it.   Mua answered that it wasn't his, but when asked whose it was, said it was his but the contents were his sister's.   Mua then agreed that Peter could look inside the briefcase, and offered to pry it open.   Meanwhile Mua opened the trunk for Peter to search.   No contraband was found in the trunk, but material that turned out to be opium was found in the briefcase.   Mua was detained for further investigation and was given Miranda warnings.   He stated at different times that he thought the package contained marijuana, heroin, and what would be called medicine in his country, and made other incriminating statements, which he unsuccessfully moved to suppress following his indictment on drug and firearm charges.

The government rejected Mua's offer to enter a conditional guilty plea to the narcotics charge.   He was convicted on both counts and sentenced to 101 months in custody.   The district court granted a four-point downward departure for aberrant behavior, but declined to award a three-point reduction for acceptance of responsibility.   Mua has timely appealed both his conviction and sentence.

II

 Mua concedes that the traffic stop was justified, but argues that his continued detention, and questioning, were not.  “Questions asked during an investigative stop must be ‘reasonably related in scope to the justification for their initiation.’ ”  United States v. Perez, 37 F.3d 510, 513 (9th Cir.1994) (citation omitted).  “An officer may broaden his or her line of questioning if he or she notices additional suspicious factors, but these factors must be ‘particularized’ and ‘objective.’ ”  Id. (citations omitted).   Relying on other traffic stop cases that ripened into searches, see, e.g., United States v. Fernandez, 18 F.3d 874 (10th Cir.1994);  United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir.1989);  United States v. Tapia, 912 F.2d 1367 (11th Cir.1990), Mua maintains that Peter lacked reasonable suspicion of criminal activity because all of the items upon which the officer relied, possibly except for nervousness, are innocent, while nervousness alone is not enough.

The district court found that after Peter had returned Mua's license and rental agreement and had given the traffic warning, Peter was performing his duty as a public safety officer by ensuring that Mua would not be stranded.   The court found that Peter was a credible witness, and Peter testified that he engaged in the conversation about Mua's trip to pass the time and because of the fuel predicament that Mua appeared to be in.   Mua's car was running all the while.   In the court's view the nature of the interaction changed to an investigatory stop when Peter asked Mua whether he was carrying drugs or weapons.   The district judge further found that the combination of factors noticed by Peter was a legitimate basis for suspicion and that Mua's consent to search his car and the statements that he made were voluntary.

 We agree with the district court that the individual factors noticed by Peter were legitimate bases for suspicion and that cumulatively, they amount to reasonable suspicion.  Perez, 37 F.3d at 514.   The absence of any record of Mua's driver's license is suspicious.  Id.;  see Fernandez, 18 F.3d at 879 (lack of a valid license gives rise to objectively reasonable suspicion).   Peter was also aware that people transporting drugs often use rental cars to avoid forfeiture and ready identification.   Mua's nervous behavior and avoidance of eye contact when talking about the nature of the trip, contrasted with his relaxed demeanor and the presence of eye contact during the traffic stop, were additional suspicious factors.  Perez, 37 F.3d at 514;  United States v. Nikzad, 739 F.2d 1431, 1432-33 (9th Cir.1984) (unusually nervous behavior gives rise to reasonable suspicion).   Renting a car to drive from Seattle to Michigan to visit an ill mother, at a cost of $650, also supports the finding of reasonable suspicion.

None of the cases upon which Mua relies requires a different result.   Unlike the defendant in Hernandez-Alvarado, Mua's driver's license didn't check out and his behavior changed from relaxed to nervous when the conversation turned to the nature of the trip.   In Fernandez, the defendant also produced a valid license and, unlike Mua, gave a “consistent and very plausible explanation of [his] travel.”  Fernandez, 18 F.3d at 878.  United States v. Recalde, 761 F.2d 1448 (10th Cir.1985), is also distinguishable because the officer detained the defendant on nothing more than “a gut instinct” after verifying the validity of the defendant's driver's license.   Here, Peter testified to a combination of factors that were consistent with his training and experience.   Similarly, in Tapia, 912 F.2d 1367, the driver's license appeared to be valid, and there is no evidence that the officer was aware of other factors that, in the officer's experience, indicated the possible transportation of narcotics.

Accordingly, the continued questioning was not unjustified.   Because the investigatory stop was supported by reasonable suspicion, Mua's consent was not tainted by a prior unlawful detention and we need not consider Mua's further argument that there must have been a break in the government's illegal detention to validate his consent.   See United States v. Delgadillo-Velasquez, 856 F.2d 1292 (9th Cir.1988).

III

 Mua argues that Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), requires reversal of his conviction on the § 924(c)(1) count because the jury was instructed that “to use or carry” means having a firearm “available to assist or aid” in the drug trafficking offense, and was permitted to consider all of the factors in evidence including “the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.” ²  Mua contends that such an instruction failed both to differentiate between “using or carrying” the firearm, and to distinguish “carrying” the firearm from mere possession.   He finally submits that mere possession does not trigger § 924(c)(1).

 The government properly concedes that Mua's § 924(c)(1) conviction cannot be upheld on the “use” prong in light of Bailey.   However, it suggests that the Court's interpretation of “use” does not foreclose a valid conviction for “carrying.”   We agree that this is so, as Bailey itself indicates that “a firearm can be used without being carried ․ and a firearm can be carried without being used.”  Bailey, 516 U.S. at ----, 116 S.Ct. at 507.   Since “[t]he ‘carry’ prong of § 924(c)(1) ․ brings some offenders who would not satisfy the ‘use’ prong within the reach of the statute,” id. at ----, 116 S.Ct. at 509, we must consider whether Mua's conviction can be upheld under the “carry” prong, as the Court itself remanded for the court of appeals to do in Bailey.  Id.

The government argues that the evidence supports Mua's conviction under a “carry” theory, and that the court's instruction did not amount to plain error.   It points to a number of pre-Bailey opinions holding that the presence of a gun in a vehicle suffices to show that the defendant “carried” it and carried it in relation to a drug offense.³  In any event, the government contends, the instructions merged the “use” and “carry” prongs and used the terms interchangeably such that the jury could not have convicted Mua of “use” without also having found that he “carried” the firearm.

We start with Bailey, where the defendant was also stopped for a traffic violation.   When he failed to produce a driver's license, Bailey was ordered out of the car and as he got out, officers saw him push something between the seat and the front console.   It turned out to be a round of ammunition and cocaine.   A later search turned up a pistol in the trunk of Bailey's car.   The D.C. Circuit concluded that the jury could reasonably infer that Bailey had used the gun in the trunk to protect his drugs and to facilitate sales.   The Court rejected this “proximity and availability” test, holding instead that a firearm must be actively employed as an operative factor in relation to the predicate offense to be “used” under § 924(c)(1).  Id. at ----, 116 S.Ct. at 505.   In so ruling, the Court sought to give content to both prongs of § 924(c)(1);  as it explained, if “use” were to encompass merely putting a gun into place to protect drugs, no role would remain for “carry.”   Id. at ----, 116 S.Ct. at 507.   But the Court went no further in defining “carry” than to suggest that a firearm could be carried when, for example, “an offender keeps a gun hidden in his clothing throughout a drug transaction.”  Id.

We did, however, define “carry” in United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996).   Hernandez was apprehended in his auto body shop where there were drugs and a gun inside a locked toolbox.   He was charged with possession of drugs and “using or carrying” a firearm in violation of § 924(c)(1).   We recognized that Bailey had overruled our prior decisions upholding convictions for “use” based on mere presence alone, and concluded that

in order for a defendant to be convicted of “carrying” a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person.   See United States v. Riascos-Suarez, No. 95-5035, 1996 WL 11015, at *6 [73 F.3d 616, 623] (6th Cir. Jan.12, 1996);  see also Bailey, [516 U.S. at ----] 116 S.Ct. at 508 (recognizing possible importance of distinction between firearm's accessibility to drugs, and its accessibility to defendant).   This means the firearm must have been immediately available for use by the defendant.

Id. at 1258.   We reversed Hernandez's conviction on the § 924(c)(1) count for insufficiency of the evidence, since his gun was in the garage in a locked toolbox, Hernandez did not transport it on or about his person, and the gun was therefore not immediately available for his use.   See also United States v. Staples, 85 F.3d 461 (9th Cir.1996).

Under Bailey and Hernandez, the jury should have been instructed separately on the “use” and “carry” prongs.   As the district court in this case did not have the benefit of either decision, its instructions applied our prior law, now overruled, and gave the same content to both, thereby incorrectly conflating “use” and “carry.”

 Bailey prescribes how “use” must be defined.   The instructions in this case correctly admonished that more than mere possession of a firearm at the time of the predicate offense is required, but incorrectly allowed the jury to convict for “use” based on a finding of proximity and availability.   Courts should no longer instruct that “[t]o use or carry a firearm means having a firearm available to assist or aid in the commission of the [predicate] crime.”   Instead, the jury should be told that to convict for “using” a firearm, it must find beyond a reasonable doubt that the defendant actively employed the firearm in relation to the predicate offense.

 Hernandez prescribes how “carry” must be defined.   The jury should be told that for a defendant to be convicted of “carrying” a gun in violation of § 924(c)(1), the government must prove beyond a reasonable doubt that the defendant transported the firearm on or about his person such that the firearm was immediately available for his use in relation to the predicate offense.   Again on this prong, the instructions given in this case properly directed the jury that “it was not enough for the government to simply prove beyond a reasonable doubt that the defendant possessed a firearm at the time in question.”   However, they fall short because under Hernandez, “carry” connotes “immediately available for use” rather than merely “available to assist or aid,” and consists of transporting the firearm “on or about ” the person, rather than being merely in “proximity.”

Nevertheless, we decline to reverse Mua's conviction on the “carry” prong.   Because Mua did not object to the instruction as given, regardless of whether we review for plain error or for harmless error, it is clear to us that the difference between a correct, Hernandez instruction on the “carry” prong of § 924(c)(1) and the instructions actually given did not affect substantial rights.

By contrast with Hernandez, and with Bailey as well, Mua's gun was on the floor of the front passenger side of the car he was driving, in an open duffel bag, within reach.   Indeed, he reached for it.   There is no doubt that Mua was transporting the gun and that being within reach, the pistol was “about” his person “immediately available for use.”   As our colleagues on the Sixth Circuit said in United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir.1996), where the defendant was also caught in his car with a gun within reach, “[s]uch availability takes the weapon beyond simple possession or storage.”  Id. at 623.   On these facts, had the jury been properly instructed under Hernandez, the outcome would not have been different.   Accordingly, we affirm Mua's conviction under the “carry” prong of § 924(c)(1).

IV

 Over Mua's objection, the court gave another instruction on the “carrying” prong of the § 924(c)(1) charge that he contends violated his due process rights.   That instruction read:

Evidence that the defendant had a gun in his possession but did not display it, or refer to it, could nevertheless support a conviction for “carrying” a firearm in relation to a crime if from the circumstances or otherwise it could be found that the defendant intended to use the gun if a contingency arose or to make an escape.

Mua focuses on the phrase “from the circumstances or otherwise,” arguing that the “or otherwise” language negated the essential relationship between the firearm and the underlying offense.   He also faults the word “could” in the phrase, “it could be found,” suggesting that “could” invited the jury to speculate and to convict on proof that the defendant “could have” committed a crime.   This, he submits, impermissibly diluted the government's burden of proof.

 “Instructions are not to be read in isolation.  ‘The question is whether the complete package was misleading or represented a statement inadequate to guide the jury's deliberations.’ ”  United States v. Potter, 616 F.2d 384, 390 (9th Cir.1979) (citation omitted), cert. denied, 449 U.S. 832, 101 S.Ct. 101, 66 L.Ed.2d 37 (1980).

Although we agree that the instructions would have been more felicitously crafted without the language about which Mua complains, we disagree that there was reversible error in the respects asserted.   The jury was instructed that it had to find that Mua committed the crime of possession of opium with intent to distribute it, and that the firearm was used or carried in relation to the underlying drug trafficking offense.   It was repeatedly instructed that the government had the burden of proving each element beyond a reasonable doubt.   The jury was also instructed to base its verdict only on the evidence received at trial.   Thus overall, we cannot say that the instructions were misleading or inadequate or that they affected Mua's due process rights.

V

 Mua argues that the district court erred in failing to give a three-point reduction in his base offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 because he cooperated throughout the traffic stop, confessed at the scene and gave a number of tape-recorded statements acknowledging his guilt and responsibility, offered to enter a conditional guilty plea to the opium charge, and did not defend on that charge at trial.   He contends that putting the government to proof at trial does not disqualify him from the reduction, nor should the fact that he intended to appeal his conviction and denial of his motion to suppress be taken into account.   Moreover, Mua challenges the government's position that he did not accept responsibility because he untruthfully claimed that the drugs were used as medicine.

 We fail to see any abuse of discretion.   The district court was entitled to take all these factors into consideration, and did not improperly rest its decision on any impermissible factor.   Only in “rare” or “unusual” circumstances will a defendant be entitled to an acceptance of responsibility reduction despite having pleaded not guilty.  U.S.S.G. § 3E1.1, application note 2.   A “limited acceptance of responsibility is not sufficient to qualify”;  therefore, the reduction need not be given if the defendant admits to some involvement before trial but does not admit to the level of involvement ultimately proved at trial.  United States v. Arias-Villanueva, 998 F.2d 1491, 1513 (9th Cir.), cert. denied, 510 U.S. 937, 114 S.Ct. 359, 126 L.Ed.2d 322 (1993).   Cf. United States v. Morales, 972 F.2d 1007, 1010 (9th Cir.1992), cert. denied, 507 U.S. 1012, 113 S.Ct. 1665, 123 L.Ed.2d 283 (1993).   A district court may likewise take into account whether the defendant put the government to its burden of proof at trial by denying essential elements of guilt.  United States v. Innie, 7 F.3d 840, 848 (9th Cir.1993), cert. denied, 511 U.S. 1042, 114 S.Ct. 1567, 128 L.Ed.2d 212 (1994).

Neither United States v. McKinney, 15 F.3d 849, 853 (9th Cir.1994), nor United States v. Khang, 36 F.3d 77, 80 (9th Cir.1994), requires reversal, as Mua contends.   Unlike Mua, McKinney didn't hold back information about himself;  he confessed to committing the robbery;  he explained how he acquired the gun that he used;  he attempted to plead guilty to two of three counts, where guilt on the two would almost necessarily entail guilt on the remaining count;  and he did not raise a defense or put on a witness to contest a material part of the government's case.

In Khang, the defendants admitted up front that they knew the substance they transported was opium, but argued that they were taking the opium to their sick father to be used as medicine.   We held that lying about motive to commit the crime does not preclude a downward adjustment for acceptance of responsibility where the lie would not establish a defense to the crime or avoid criminal liability.   Mua, by contrast, said among other things that he had the gun to protect himself against African-Americans rather than to protect the drugs.   Unlike statements about motive, this statement would have established a defense to the § 924(c) charge.

In sum, the district court's decision was not clearly erroneous.   Declining to award a three-point reduction for acceptance of responsibility was thus well within its discretion.

AFFIRMED.

FOOTNOTES

1.   Section 924(c)(1) provides for enhanced penalties if the defendant “during and in relation to any crime of violence or drug trafficking crime ․ uses or carries a firearm.”  18 U.S.C. § 924(c)(1).

2.   The instruction read in full:In order to convict the defendant of the crime charged in Count 2, it is not enough for the government to simply prove beyond a reasonable doubt that the defendant possessed a firearm at the time in question.   Rather, in order for the defendant to be convicted, the government must prove beyond a reasonable doubt that the firearm was used or carried in relation to the underlying drug trafficking offense.To use or carry a firearm means having a firearm available to assist or aid in the commission of the crime alleged in Count 1 of the indictment.   In determining whether a defendant used or carried a firearm, you may consider all of the factors that have been received into evidence including the nature of the underlying drug trafficking crime alleged, the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.   However, in order to convict, there must be evidence that the firearm was available to provide protection to the defendant or intimidate others in connection with his involvement in drug trafficking.It is not the intent of the statute in question to punish people in instances where the presence of the firearm was merely coincidental and unrelated to the drug trafficking offense.

3.   See, e.g., United States v. Plummer, 964 F.2d 1251, 1253-55 (1st Cir.), cert. denied, 506 U.S. 926, 113 S.Ct. 350, 121 L.Ed.2d 265 (1992);  United States v. Eaton, 890 F.2d 511, 512 (1st Cir.1989), cert. denied, 495 U.S. 906, 110 S.Ct. 1927, 109 L.Ed.2d 291 (1990);  United States v. Joseph, 892 F.2d 118, 126 (D.C.Cir.1989);  United States v. Feliz-Cordero, 859 F.2d 250, 253 (2d Cir.1988);  United States v. Brockington, 849 F.2d 872, 874 (4th Cir.1988).

RYMER, Circuit Judge: