FROM:John C. Keeney
Acting Assistant Attorney General

SUBJECT: Supreme Court's Decision in Bailey v. United States, No. 94-7448 (December 6, 1995)

1. Direct Appeal: The decision in Bailey is applicable to cases on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (Court's decision in criminal case is "applied retroactively to all cases * * * pending on direct review or not yet final"); see id. at 321 n.6 (case is "final" when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied"). Accordingly, we should concede that a defendant whose conviction is not yet final may raise a claim under Bailey.

2. Collateral Attack: It seems likely that courts will also apply the decision in Bailey to collateral attacks under 28 U.S.C. § 2255. The Supreme Court has made clear that a defendant may properly claim in a Section 2255 motion that, based on a court decision that resulted in a change in the law after affirmance of his conviction, his "conviction and punishment [were] for an act that the law does not make criminal." Davis v. United States, 417 U.S. 333, 346 (1974); see id. at 346-347 ("There can be no room for doubt that such a circumstance 'inherently results in a complete miscarriage of justice, and 'Present[s] exceptional circumstances' that justify collateral relief under § 22551") (quoting Hill v. United States, 368 U.S.424, 428 (1962)); see United States v. Shelton, 848 F.2d 1485, 1489-1490 (10th Cir. 1988).
   Even in cases in which the defendant did not challenge the sufficiency of the evidence to support his Section 924(c) conviction at trial or on direct appeal, we cannot rely on the cause and prejudice standard of United States v. Frady, 456 U.S. 152 (1982). A defendant who was sentenced to a term of imprisonment based on a conviction under Section 924(c) for conduct that (in light of the subsequent decision in Bailey) is not prohibited by the statute has made the required showing of prejudice, and a showing of cause for the default would be excused because, under those circumstances, the defendant is "actually innocent" of using a firearm under Section 924(c)(1). See Murray v. Carrier, 477 U.S. 478, 496 (1986).

   Finally, because the Bailey decision decriminalizes conduct that does not constitute "use" under the standard it announces, it applies retroactively to final criminal convictions. Decisions construing statutes generally are fully retroactive, and we cannot argue that Bailey announced a "new rule" under Teague v. Lane, 489 U.S. 288 (1989), which should not be applied retroactively to convictions that were final when the Court issued its decision. See Ianniello v. United States, 10 F.3d 59, 63 (2d Cir. 1993) (court decision that "placed conduct beyond the reach of punishment is retroactively applicable on collateral review").

   In sum, therefore, we should concede that a Bailey claim is cognizable under Section 2255 and that a defendant who has a valid claim under Bailey need not satisfy the cause and prejudice standard.

   Responding to Bailey Claims: In many cases, we will have to concede that the defendant's conduct did not fall within the statute as interpreted by the Supreme Court. Depending on the evidence in a particular case, however, there are several possible arguments we can use to try to salvage convictions. On either direct appeal or collateral attack, cases raising Bailey claims may arise in the following circumstances:

   1. The defendant pleaded guilty to "using" a firearm in violation of Section 924(c)(1) and seeks to raise a Bailey claim for the first time on appeal or by motion under Section 2255: In these cases, we may be able to argue that the defendant has waived any challenge to the factual basis for the plea. See United States v. Broce, 488 U.S. 563, 570 (1989) (guilty plea "is an admission that [the defendant] committed the crime charged against him") (quoting North Carolina v. Alford, 400 U.S. 25, 32 (1970)); McCarthy v. United States, 394 U.S. 459, 466 (1969) ("a guilty plea is an admission of all the elements of a formal criminal charge"). Courts are unlikely to accept that argument,however, where the factual basis for the guilty plea rested on conduct that is clearly not criminal under Bailey.

   2. The defendant was convicted under Section 924(c)(1) of using a firearm, and the evidence does not show a "use" as Bailey defined that term: In these circumstances, we should concede that the evidence is insufficient on the Section 924(c) conviction.

   3. The defendant was convicted under Section 924(c)(1) of using a firearm; the trial court instructed the jury that to convict the defendant on a Section 924(c)(1) count, it must find that he "used or carried" a firearm, without further defining "use"; and there was evidence that the defendant "used" a firearm, as that term is defined in Bailey: In this circumstance, we should argue that no error occurred, and that the defendant's conviction is valid under Bailey.

   4. The defendant was convicted under Section 924(c)(1) of using a firearm, the jury instructions on the meaning of use were inconsistent with Bailey, but there is evidence of a use that would satisfy the Bailey standard: Here, we should, if possible, argue that the error was harmless because, based on the evidence introduced at trial, "no rational jury could * * * fail to find" that the defendant's conduct constituted "use" under the Bailey standard. See Carella v. California, 491 U.S. 263, 266-267 (1989) (per curiam); see also Pope v. Illinois, 481 U.S. 497, 503-504 n.7 (1987); United States v. Holley, 23 F.3d 902, 910-911 (5th Cir.), cert. denied, 115 S. Ct. 635 (1994), 115 S. Ct. 737 (1995); Ianniello v. United States, 10 F.3d at 63-65. We should make a harmless error argument where the evidence clearly showed that the defendant engaged in conduct that the Bailey Court held fell within the statute: "brandishing, displaying, bartering, striking with, and firing or attempting to fire, a firearm."

   Carrying: In cases arising on both direct appeal and collateral attack, we should argue that a conviction can be upheld under the "carrying" prong of Section 924(c)(1) if the jury was instructed on carrying and the evidence supports a finding that the defendant carried the firearm. As the Court noted in Bailey, a defendant may "carry" a firearm without "using" it -- for example, "when an offender keeps a gun hidden in his clothing throughout a drug transaction." Courts have also held that "carrying" a firearm under Section 924(c) includes transporting a firearm in a vehicle. See United States v. Freisinger, 937 F.2d 383, 387-388 (8th Cir. 1991); United States v. Ross, 920 F.2d 1530, 1536-1537 (10th Cir. 1990). Finally, if the predicate offense is conspiracy or possession with intent to distribute, it may be possible to argue that the conviction should be upheld if the evidence shows that the defendant carried the firearm at any time during the offense.

   One difficulty with this argument is the Supreme Court's statement in Griffin v. United States, 502 U.S. 46 (1991), that although a guilty verdict need not be set aside merely because the evidence was insufficient to support one of two possible bases of conviction, a different rule applies when one of the theories of liability was "legally inadequate." See id. at 59 (noting that þ[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.