December 13, 1995
TO: All United States Attorneys
ll Criminal Division Section Chiefs
FROM:John C. Keeney
Acting Assistant Attorney General
SUBJECT: Supreme Court's Decision in Bailey v. United States, No. 94-7448 (December 6, 1995)
Under 18 U.S. C. § 924 (c) (1), a person who "during and in relation to any crime of violence or drug trafficking crime * * * uses or carries a firearm" is subject to a five-year minimum sentence. In Bailey v. United States, the Supreme Court held that conviction of a defendant for "use" of a firearm under Section 924(c) requires "evidence sufficient to show an active employment of the firearm by the defendant." The Court explained that "use" under Section 924(c) (1) "includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." In addition, "an offender's reference to a firearm in his possession could satisfy § 924(c)(1), if it is "calculated to bring about a change in the circumstances" of the underlying crime of violence or drug trafficking crime.
The Court rejected the government's contention that "placement of a firearm to provide a sense of security or to embolden" a defendant constitutes "use" under the statute. Thus, the Court held that [j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law -- whether, for example, the action in question * * fails to come within the statutory definition of the crime"). Nevertheless, in light of the Court's remand in Bailey for the district court to consider whether the convictions could be upheld under the "carrying" prong of Section 924(c), we should not abandon the "carrying" argument.
Resentencing: In cases in which a court of appeals relies on Bailey to reverse a Section 924(c) conviction or grant relief under Section 2255, we should argue that the defendant can be resentenced on the other counts of conviction. Courts have generally held that resentencing a defendant under these circumstances merely "effectuate[s] the trial court's original sentencing intentions" and does not violate the defendant's due process rights or place him in double jeopardy. United States v. Pimienta-Redonde, 874 F.2d 9 (1st Cir.) (en banc), cert. denied, 493 U.S. 890 (1989); see also United States v. Shue, 825 F.2d 1111 (7th Cir. 1987), cert. denied, 484 U.S. 956 (1987); but see United States v. Minor (9th Cir. 1988) (when court of appeals reverses defendant's convictions on some counts, district court may not resentence defendant on remaining counts unless authorized to do so by court of appeals' mandate or Fed. R. Crim. P. 35); see id. at 1189 n.5 (suggesting that government may "ask the court of appeals to exercise its discretion" to order resentencing on counts that were affirmed).
The Court observed in Bailey that the government "has other means available to charge offenders who mix guns and drugs," noting that "Sentencing Guidelines § 2D1.l(b)(1) provides an enhancement for a person convicted of certain drug-trafficking offenses if a firearm was possessed during the offense." As the Court's comment makes clear, the Guidelines adjustment requires only possession, not "use," of a firearm. Although the Guidelines prohibit application of the Section 2D1.l(b)(1) adjustment to a defendant who was convicted for a violation of Section 924(c) as well as an underlying drug trafficking offense, see Guidelines § 2K2.4, Application Note 2, when a defendant's Section 924(c) conviction is reversed and the case is remanded for resentencing on an underlying drug trafficking conviction, we should point out that the defendant is now eligible for the upward adjustment under Section 2D1.l(b)(1) and should ask that the adjustment be imposed.
Assistance: Questions about the effect of the Bailey decision on charging decisions under Section 924(c) should be directed to John DePue (202) 616-0725 and Stanley Rothstein (202) 616-3102 in the Terrorism and Violent Crime Section. Assistance in responding to Bailey claims should be sought from the Appellate Section liaison for your office.
[cited in JM 9-63.500]