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BAILEY v. UNITED STATES 516 U.S. 137

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OCTOBER TERM, 1995

Syllabus

BAILEY v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 94-7448. Argued October 30, 1995-Decided December 6,1995*

Petitioners Bailey and Robinson were each convicted of federal drug offenses and of violating 18 U. S. C. § 924(c)(I), which, in relevant part, imposes a prison term upon a person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm." Bailey's § 924(c)(I) conviction was based on a loaded pistol that the police found inside a bag in his locked car trunk after they arrested him for possession of cocaine revealed by a search of the car's passenger compartment. The unloaded, holstered firearm that provided the basis for Robinson's § 924(c)(I) conviction was found locked in a trunk in her bedroom closet after she was arrested for a number of drug-related offenses. There was no evidence in either case that the defendant actively employed the firearm in any way. In consolidating the cases and affirming the convictions, the Court of Appeals sitting en banc applied an "accessibility and proximity" test to determine "use" within § 924(c)(I)'s meaning, holding, in both cases, that the gun was sufficiently accessible and proximate to the drugs or drug proceeds that the jury could properly infer that the defendant had placed the gun in order to further the drug offenses or to protect the possession of the drugs.

Held:

1. Section 924(c)(I) 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. Evidence of the proximity and accessibility of the firearm to drugs or drug proceeds is not alone sufficient to support a conviction for "use" under the statute. Pp. 142-151.

(a) Although the Court of Appeals correctly ruled that "use" must connote more than mere possession of a firearm by a person who commits a drug offense, the court's accessibility and proximity standard renders "use" virtually synonymous with "possession" and makes any role for the statutory word "carries" superfluous. Section 924(c)(I)'s language instead indicates that Congress intended "use" in the active sense of "to avail oneself of." Smith v. United States, 508 U. S. 223,228-229. This reading receives further support from § 924(c)(I)'s context within

*Together with No. 94-7492, Robinson v. United States, also on certiorari to the same court.cralaw


138

the statutory scheme, and neither the section's amendment history nor Smith, supra, at 236, is to the contrary. Thus, to sustain a conviction under the "use" prong of § 924(c)(I), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime. Under this reading, "use" includes the acts of brandishing, displaying, bartering, striking with, and firing or attempting to fire a firearm, as well as the making of a reference to a firearm in a defendant's possession. It does not include mere placement of a firearm for protection at or near the site of a drug crime or its proceeds or paraphernalia, nor the nearby concealment of a gun to be at the ready for an imminent confrontation. Pp. 142-150.

(b) The evidence was insufficient to support either Bailey's or Robinson's § 924(c)(I) conviction for "use" under the active-employment reading of that word. Pp. 150-151.

2. However, because the Court of Appeals did not consider liability under the "carry" prong of § 924(c)(I) as a basis for upholding these convictions, the cases must be remanded. P. 151.

36 F.3d 106, reversed and remanded.

O'CONNOR, J., delivered the opinion for a unanimous Court.

Alan E. Untereiner argued the cause for petitioners in both cases. With him on the briefs were David B. Smith and Roy T. Englert, Jr.

Deputy Solicitor General Dreeben argued the cause for the United States in both cases. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, James A. Feldman, and John F. De Pue.t

JUSTICE O'CONNOR delivered the opinion of the Court. These consolidated petitions each challenge a conviction under 18 U. S. C. § 924(c)(1). In relevant part, that section imposes a 5-year minimum term of imprisonment upon a person who "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." We are asked to decide whether evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is alone

tEdward H. Sisson and Daniel A. Rezneck filed a brief for James Doe as amicus curiae urging reversal.cralaw


139
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