United States v. Jon William Guess, Opinion

previously We concluded in diately Marks that and without an opportunity to Congress temporal has not limited the amend. 1915(e)(2). Marks,

reach of agrees

at 496. Petitioner conclu- that therefore, question,

sion. The becomes Supreme

whether opinion Court’s

Martin v. Hadix indicates that we decided is, incorrectly.

Marks ap- That does the 1915(e)(2)

plication §of to cases pending produce its enactment a genuine retroactive effect? I that it would hold America, UNITED STATES does not. Plaintiff-Appellee, Martin, Supreme Court reiterat- ed the rule it set forth in Landgraf: “The GUESS, Jon William Defendant- inquiry operates into whether a statute Appellant. retroactively sense, demands a common functional judgment about “whether No. 98-16323. provision new attaches legal new conse- quences completed to events before its en- United States Court of Appeals, actment....’ judgment should be Ninth Circuit.

informed guided by ‘familiar consider- Arguеd and Submitted Oct. notice, reliance, ations of fair reasonable expectations.’” and settled Decided Feb. (quoting Landgraf, 511 1483). Marks, just that, the Court did stat- “[bjecause 1915(e)(2) ing that section impair any substantive rights pris-

oners, but instead affects the abili-

ty prisoners appeals maintain in for-

ma pauperis, we conclude that section

1915(e)(2) procedural is a rule which raises

no retroactivity Landgraf.” concerns under

98 F.3d at 496. There is no reason to

disturb holding in Marks.

1915(e)(2), properly interpreted, neither

impairs right of a litigant bring

suit nor expectations disturbs the settled litigants ‍​​‌​‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌​​​​‌‌‌‌‌‌‍petitioner. Instead, such as IFP,

simply ability affects the to file a case granted

a privilege by Congress, not a

right.

IV.

Conclusion reasons,

For the foregoing I would con- 1915(e)(2)

clude requires

district dismiss an IFP prisoner’s claim,

complaint fails to state imme- Rosenthal, Schaffer, Riordan & L.

Dylan California, Francisco, for the defen- San dant-appellant. Julian, Assistant United B.

Kenneth Fresno, California, for Attorney, States plaintiff-appellee. PREGERSON, Before: SNEED and CARTER,1 District Judges, and Circuit Judge.

SNEED, Judge: Circuit indicted Wil- jury Jon grand A federal July on (“Appellant”) liam Guess attempting to manu- him with charged (“Count One”), methamphetamine facture for the manufacture maintaining place (“Count Two”), and us- methamphetamine relation to carrying ing and Three”). (“Count 21 U.S.C. drug offense 841(a)(1), 856, and 18 U.S.C. §§ plea agree- to а Pursuant ment, guilty to first Appellant pleaded was then sen- counts. third imprisonment on to 87 months tenced and, having admitted owner- Count One to 60 pistol, of the semi-automatic ship imprisonment months consecutive 11, 1994, following April Three. On Count af- appeal, judgment and district court’s firmed sentence. California, Carter, sitting by designation. David O.

1. The Honorable Judge for the District Central Appellant at plea colloquy swore to trict court when it erred determined that having “possessed a Smith and Wesson Appellant “used” a in violation of Model 39 ... which he protect used to 924(c)(1),and we therefore reverse. methamphetamine himself and his labora-

tory.” maintained that He he lived in a I.

terraced apartment laboratory, above the The Procedural Default Issue the site of his arrest. According to the Bеfore we Appellant’s address ar court, district “[T]he Government’s exhib- gument that the evidence does not support its indicate that petitioner brought plea to “using” porch out onto the offi- violation cers arrived at his 924(c)(1), residence to execute we must de search warrant and that the firearm was termine Appellant whether the has proce ready loaded to fire.” In one of these durally-defaulted this claim. exhibits a letter to defendant’s counsel Although Appellant contested his in which government reported state- sentence on appeal, direct he failed to chal ments made at Appellant of his time lenge ‍​​‌​‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌​​​​‌‌‌‌‌‌‍the validity plea of his he until filed arrest. The letter stated: “After discover- his Section 2255 motion. Ordinarily a Sec ing thе weapon balcony, on the the defen- tion 2255 petitioner so raising a Bailey dant, being officers, who was by secured argument procedural would be in default. volunteered that dropped the weapon Bousley, 621, 523 U.S. after he identity discovered the of the offi- (finding default petitioner where challeng A cers.” more extensive recitation of the ing plea his guilty Bailey raisе facts necessary. is not claim in appeal); United States v. appeal, In this Appellant protests the 152, Frady, 165, 1584, 102 S.Ct. denial motion, of his pur consolidated filed 1588, (1982) 71 L.Ed.2d 816 (noting-that a 2255, vacate, § suant to 28 U.S.C. set motion to modify vacate or a sentence aside, or correct his sentence. court § under 28 U.S.C. 2255 cannot be used as granted a certificate of on the appеalability Benboe, a substitute a direct appeal); for issue of whether evidence was suffi 157 F.3d at 1184 (applying Bousley and cient “using” convict finding default petitioner where challeng firearm during and in relation to a plea his guilty Bailey did not raise offense, trafficking in violation of 18 U.S.C. claim in appeal). 'direct To such' overcome § specifically certificate re default, Appellant would have to ei show States, ferred to v. United 516 U.S. (1) ther “prejudice” actual “cause” 137, (1995); 116 S.Ct. 133 L.Ed.2d default, (2) explain .the v.

Bousley United “actually of, alia, innocent” inter the crime (1998); 140 L.Ed.2d 828 for which he was Benboe, Bousley, indicted. F.3d (9th Cir.1998). 1604; U.S. at 118 S.Ct. see also Ben boe, 157 F.3d at 1184 (applying Bousley).

We review de novo district court deny decision prisoner’s However, federal government failed U.S.C. 2255 motion and we review its initially argue the default issue. It first factual findings for clear ‍​​‌​‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌​​​​‌‌‌‌‌‌‍error. See Unit Appellant’s potential raised default in its Navarro, ed States v. 1255 response F.3d brief to court. this In United — (9th Cir.1998), denied, U.S. -, cert. Barron, (9th States v. 172 F.3d 1153 Cir. (1999); 119 S.Ct. 144 L.Ed.2d 249 1999) (en banc), declared, we “[This court] Benboe, 1183; 157 F.3d at Sanchez v. ... usually will government not allow the (9th 50 F.3d 1451-52 a petitioner’s raise default for the first Cir.1995). time on appeal, when it did not take the apрropriate opportunity

Jurisdiction is under 28 to do so before the district U.S.C. 1291. We conclude that the dis- court.” 172 F.3d the gov When To belie its assertion. Its actions court. default petitioner’s raises a ernment had often raised usually government repeat, court appeal, time on the first its “waived” in other district issue government default finds that requires thus mo- Appellant’s Barron by Id. the time defense. proceedings default “extraordinary See, show government Bousley, 523 e.g., that the tion was decided. “justice suggest circumstances” 140 L.Ed.2d gov overlooking would served be as raised default (discussing petitioner’s court]” the district [at omission ernment’s court). Therefore, justice district to avoid waiv government in order overlooking the served would met here. is not That standard er. Id. Barron, 172 waiver.2 gоvernment’s failure to contest at 1156. cannot appeal Bailey grounds “ II. legal ‘that its to be so unusual said reasonably available not basis [was] Issue The “Use” ” (quot- at Id. 1157 counsel.’ [government] substance of turn to the nowWe Ross, 104 Reed v. 468 challenge, and we 2255 Section Appellant’s (1984)). fact, 1 L.Ed.2d 82 Ap support not find that record proce- litigating how had been government firearm “use” of a pellant’s Bailey apply rules should dural default meaning of Section within other circuits in several challenges motion was be- 2255 Appellant’s Bailey that held in Supreme Court The id.; In re district court. fore the 924(c)(1) evi- charge requires a Section (6th Cir.1997); Lee Hanserd, F.3d 922 employ- show an “active sufficient to dence (7th States, Cir. F.3d v. United defendant, a by the ment of Brooks, 1997); 97 F.3d Bousley v. operative the firearm that makes use Bousley v. (8th Cir.1996), rev’d sub nom. offense.” to the in relation factor Such an 143, 116 S.Ct. 501. (1998); United L.Ed.2d 828 understanding cer- (10th Bamhardt, v. “brandishing, displaying, tainly includes Cir.1996). demonstrates litigation with, most obvious- bartering, striking de- was familiar with government that the a firearm.” ly, firing attempting fire Appel- have raised It could fault issues. Court was 501. The Id. at it court and in the district lant’s default not an exclusive list that this was clear so. have donе should (“[W]e briefly describe See id. “uses.” conclu- challenges this government ‘ac- that fall within the activities some to Unit- a 1995 memorandum all sion with (em- ....’”) a firearm employment of tive Attorneys Acting in which the ed States added). fact, offender’s “even an phasis Attorney General determined: Assistant possession to a reference \i.e., con- should government] “[W]e 924(c)(1).” However, Id. satisfy could сognizable un- Bailey is claim cede that “use” does emphasized that Court also who and that a defendant der Section espe- possession,” “mere encompass not not claim under need has a valid kept at or near weapon cially where actual prejudice [or satisfy the cause and purpose of crime for the site of a government standаrd.” innocence] Id. at the offender. “emboldening]” by this document suggests facts, additional S.Ct. 501. Without to raise legal basis it had a believe disclosing the avail- wrongdoer’s as a such Appellant’s Sec- default when Appellant’s intimi- ability weapon of the order the district 2255 motion was tion Bailey peti brief, government’s waiver aof government asks lieve response In its so, default). to do be rеasoning We decline adopt of Rosario tioner’s this court (2d dispositive. Cir. point 732-33 and is 164 F.3d is on Barron cause 1998) (establishing to re multi-factor test date, presence” simple (6th the “inert “stor- Court cited Black’s Law Dictionary ed.1990) age” of a firearm does not equal “use.” which defined the phrase “carry Id. weapons” wear, arms or as: “To bear or carry them upon person оr in the case, Appellant In this drew the loaded clothing or in a pocket, for purpose off, weapon, safety clicked the and held it use, purpose or for the being armed and of his methamphetamine ready for offensive or defensive outside, action in laboratory. Having heard noises case of conflict with person.” another he took his in hand and Id. went Thus, рatrolling 118 S.Ct. 1911. apartment balcony. Appellant on his Af- themselves, likely ter the authorities most pistol identified “carried” the in violation 924(c)(1) dropped gun, of 18 U.S.C. simply found next to its holster. With in “bearfing] round person.” arms on his Id. chamber, its ready to fire. more, Without patrolling ‍​​‌​‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌​​​​‌‌‌‌‌‌‍a methamphet- However, agents hear see or amine laboratory with a loaded weapon, about the while it was-in even safety its disengaged and its hands. Since the officers were unaware of discarded, holster “using” is not a gun. arrested, pistol until after he Ap- all Consequently, parties plea agree- pellant that, case, correctly argues in this ment were mistaken when Appellant he could not be incarcerated “use.” pleaded guilty to “use” under pre- the 149, See id. at Appel- S.Ct. 501. While 924(c)(1). Bailey meaning of Section Un- lant did more than “store” pis- his “use,” der the veneer of the word Appel- nearby tol or within the folds of his cloth- actually lant pleaded guilty “possessing” ing, the essentially was concealed. in gun a drug relation to a trafficking presence Its legally inert. offense, which is Congress behavior Court evinced a concern that 924(c)(1). not criminalize in Sectiоn Ap- too reading broad of “use” would “under- pellant’s behavior only “carry- constituted ” “virtually any mine” ‘carry.’ function for ing.” We therefore find that “the sentence 146, Id. at In light S.Ct. 501. of this imposed Appellant] [on was not authorized concern, say we cannot the instant by law.” 28 U.S.C. 2255. Accordingly, case is an example of “use” “carry” the district court’s dismissal of Appellant’s overlapping. To find that Aрpellant was vacate, aside, Section 2255 motion to set using a gun would to ignore be the Su- correct his sentence hereby admonition, preme Court’s because Appel- REVERSED. lant yet had not “converted” the to “service.” He simply walking around CARTER, Judge, dissenting in with it. Bailey, Appellant . Under “ part. ‘carry out a purpose or action means ” I concur with 145, majority’s opinion the in weаpon. of a Id. at 116 S.Ct. 501 I; however, Part (quoting part company Smith v. I from the 223, 2050, majority interpretation S.Ct. L.Ed.2d 138 their of Bailey (1993)). 137, v. United States. See 516 U.S. (1995). S.Ct. 133 L.Ed.2d 472 I feel record, Based on the the district court majority’s “use,” interpretation of as “persua[sive]” found Appel- evidence that in Bailey, defined been applied too lant “carried” weapon within the mean- narrowly. Bailey holds that a ing of Section Although it could 924(c)(1) charge requires sufficient evi- apply not Supreme latest Court pro- dence to show an employment of nouncement on the meaning “carry,” of see defendant, firearm a use Muscarello v. (1998), operative makes the firearm an factor in L.Ed.2d 111 district court relation probably reached the correct offense.” 516 Muscarello, conclusion. Supreme 501. The Court also and sen- penalties Defendant’s discuss by find- uses possible of scope limited unrelated to Defen- reasons tence. For encompass “mere that “use” firearm, al- the Court of a or the “inert dant’s “storage,” “use” simple possession,” 143-149, plea. to withdraw Id. at the Defendant firearm. lowed of a presence,” “ must ‘use’ (stating that 116 S.Ct. 501 conferencе, on March pretrial At the yet possession” mere more than connote another accepted 1993, Judge Crocker of presence and forceful “silent but obvious The written from Guess. change plea of ‘use’”). Use, can a table be a on virtually identical agreement plea but storage, then, than be more mere must January on taken original plea with, striking brandishing, can less than February on plea and the amended 148, 116 S.Ct. Id. at firing firearm. was identical to plea agreement 1993. of to the “use” pertained original as case reveals history of this The tortuous again, explanation the firearm. Once admitted explicitly the defendant using a of crime of the elements plea separate of a firearm three “use” trafficking were drug firearm relation January when en- hearings. On ex- agreement and plea set forth in Robert E. Judge plea before tering his exactly as it was by the plained swore Defendant Guess Coyle, 25,1993. January was, in truth guilty because he pleading Procedure Rule Criminal Federal set fact, charges. As judge devel- Each trial was not violated. explained agreement forth in the history before adequate factual oped Court, uses a Defendant by the pleas. Guess swore separate accepting trafficking when:' in relation to importantly, most “use” possession First, committed the defendant of his the in- charged in count one crime of first, second, third and laboratory in his dictment; Second, issue the Courts, on The hearings. role in played to or some was related two and different threе occasions before Third, crime; the and that defendant the brought that Guess load- judges, found the knowingly used carried “use to balcony the for weapon onto ed committing the crime in methamphetamine and his protect himself that the admitted plea, In his Defendant added) I (emphasis believe laboratory.” methamphet- manufacture to he intended deference to these give that we should attempted manufacture and to amine repeated the findings, factual defendant’s by renting premises, a methamphetamine of expectation and of “use” the admissions laboratory, acquiring setting up a truly a “use.” this parties all was of in the manufacture to be used chemicals (2) revolver, (1) a drew loaded Guess stated that He also he methamphеtamine. (3) off, held it for safety clicked the Wesson, model a “possessed Smith methamphetamine his the A614574which mm serial number pistol, actions do not These laboratory. three his meth- himself and to protect he used balcony equate possession. to mere laboratory.” amphetamine was outside gun was found de- the where 3, 1993, a result a February as On The metham- sleeping quarters. fendant’s methamphet- quantity dispute about laboratory located one floor was phetamine involved, an parties executed amine methamphetamine Because below. This amended plea agreement. amended only one floor laboratory located be- was virtually identical to plea agreement was bedroom, I do not believe low defendant’s except agreement, January his simply protecting resi- quanti- sentences potential heard nois- dence business. Guess set forth in and/or methamphetamine ty of were holster, es, weapon out of took 8, 1993, February more detail. On hand, patrolling. in went Coyle Judge parties appeared Only when the authorities 'identified them- Bailey, discussed in Guess a used loaded drop did selves Guess revolver. This and unholstered weapon, was re- haded, safety ‍​​‌​‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌‌​​‌‌‌​​‌​​​‌​‌​​​​‌‌‌‌‌‌‍revolver was found with the trieved from night stand, unlocked off, ready By pulling the weapon fire. surprised by intruders. While the holster, out of the it to converted “use.” majority suggests that Guess only “carrying” the gun Defendant’s “use” is more than “embol when he removed it dening.” stand, Narcotics dealers and manufac from the night in my Opinion, he rely have to self-help turers because actively employed the gun when he loaded they subject to the are same violence that it and took safety off so that the gun they perpetrate. often “Rip offs” are a only prepared fire, was not but activat- n phenomeno common drug world. to fire. The ed record is unclear as to r Obviously, Guess and othe dealers аnd whether weapon already loaded go manufacturers cannot to the police and and taken from the night stand or it was complain of a crime or a file civil cause of the, loaded defendant when he heard Rather, action for return of narcotics. Nonetheless, noises. weap- when loaded dealers and manufacturers must take mat on, off, with the sаfety patrol, taken on result, ters into their own hands. As a the defendant has “used” the weapon, “use” of Guess’s demonstrated his whether or not the initially protect obvious need to narcotics. Un loaded unloaded condition. or, like innocent homeowner even a small dealer who call hop would out all due respect With majority, frighten away, the intruder manu ruling may Court’s lead imрression facturers and dealers virtue to their only an actual confrontation will in- trade, profitable targets become or easy voke “use” of a firearm. Guess should not marks other criminals. order to escape a “use” enhancement simply be- themselves, protect such dealers as Guess police cause see him holding feel patrol the need to wеapons. and “use” weapon. logical extension of ar- had approximately kilogram Guess one gument would be that there would then methamphetamine protect. Guess did to be a have with an confrontation armed not call out because his intent was to sur defendant his home before we would intruder, prise the may who he have be find “active of a firearm. was anоther lieved criminal bent on “rip my opinion, “use” require should not ping him off’ from illegal either his monies By actual confrontation. Guess’s move- methamphetamine. and/or ment, loading and removing its majority argues instead of “us- safety, actively employed has weap- ing” gun, only Guess was carrying the on and not By it. finding “stored” gun. Bailey, found, the Court in the actively Guess has not “used” em- consolidated pеtitions of Defendant Bailey ployed the I weapon, the majority fear Robinson, and Defendant that neither De- interpreted scope meaning fendant had “used” firearm under Sec- narrowly “use” too and therefore has tion 150-51, step moved us one closer to doctrine of S.Ct. 501 (remanding for consideration of “inevitable confrontation” as a “carry” prong 924(c)(1), of Section for “use.” which is not relevant analy- to this Court’s sis). The employ- Court found no “active

ment” of placed had been bag in the

inside locked car trunk. See case,

id. In Robinson’s Court found

no when the “unload-

ed, bolstered” “was found locked

in a footlocker a bedroom closet.” Id. added).

(emphasis Unlike the Defendants

Case Details

Case Name: United States v. Jon William Guess, Opinion

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 10, 2000

Citation: 203 F.3d 1143

Docket Number: 98-16323

Court Abbreviation: 9th Cir.