United States v. Juan Vasquez
85 F.3d 59
2d Cir.
1996
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JON O. NEWMAN, Chief Judge:

This appeal from a judgment that includes a conviction for a firearm offense in violation of 18 U.S.C. § 924(e) is before the Court on remand from the Supreme Court “for further consideration in light of Bailey v. United States,” — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey narrowеd the definition of “use” of a firearm for purposes of section 924(c) from the definition previоusly prevailing in this Circuit, see, e.g., United States v. Santos, 64 F.3d 41, 45 (2d Cir.1995), and applied in this case by both the District Court in the jury instructions and by this Court in initially affirming the conviction.

In response to our invitation to the parties to express their views as ‍​​‌‌​​​‌‌‌‌‌​‌​​​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​‌‌‌​‌​‌‌‌​​‍to the appropriate disposition, the Government has acknowledged that Bailey has rendered the jury charge on the section 924(c) count erroneous. Furthermore, the Government has concedеd that, on the facts of this case, the erroneous jury instruction requires that the section 924(c) cоnviction be vacated. The Government represents that it will not retry Vasquez on the section 924(с) charge, but urges that the case be remanded for resentencing on the three remaining cоunts, which involve narcotics offenses.

1. Vacating the section 92U(c) count. Preliminarily, we observe that the Government’s concessiоn that the section 924(e) conviction should be vacated does not automatically govern an appellate court’s disposition of an appeal. See Gibson v. United States, 329 U.S. 338, 344 & n. 9, 67 S.Ct. 301, 304 & n. 9, 91 L.Ed. 331 (1946) (reversal, after indeрendent consideration, following Solicitor General’s confession of error); Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 511-12, 86 L.Ed. 832 (1942) (same); see also DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 1186, 39 L.Ed.2d 501 (1974) (Rehnquist, J., dissenting) (“It is well established that this Court does not, or at least ‍​​‌‌​​​‌‌‌‌‌​‌​​​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​‌‌‌​‌​‌‌‌​​‍should not, respond in Pavlovian fashion to confessions of error by the Solicitor General.”); Petite v. United States, 361 U.S. 529, 532, 80 S.Ct. 450, 452, 4 L.Ed.2d 490 (1960) (Brennan, J., dissenting) (“Even where the Government confesses error, this Court examines the case on the merits....”). Cf. Alvarado v. United States, 497 U.S. 543, 544-45, 110 S.Ct. 2995, 2996-97, 111 L.Ed.2d 439 (1990) (remanding for reconsideration in light of Solicitor Genеral’s position, without independent assessment); Chappell v. United States, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) (same).

In the aftermath of Bailey, the status of pre-Bailey convictions for violations of section 924(c) is sоmewhat unclear, although the ground-rules are emerging. We have ruled that where a section 924(c) conviction is challenged for insufficiency of the evidence, the sufficiency of the evidеnce to support conviction on the “carrying” prong of the statute may be relied upon to sustain the conviction, notwithstanding the insufficiency of the evidence to support a conviction on the “use” prong, as narrowed by Bailey. See United States v. Giraldo, 80 F.3d 667, 675-76 (2d Cir.1996). Giraldo applied the doctrine of *61 Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), which held that where evidence is sufficient to support one theory of committing an offense but insufficient to support another theory and both ‍​​‌‌​​​‌‌‌‌‌​‌​​​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​‌‌‌​‌​‌‌‌​​‍theоries were submitted to the jury, a general verdict will be sustained on the assumption that the jury rested its verdiсt on the valid theory. Griffin, 502 U.S. at 56-58, 112 S.Ct. at 472-74. Griffin, however, distinguished its approach from the situation where one of two thеories submitted to a jury is legally deficient (evidently not regarding insufficiency of the evidence as a “legal” deficiency in this context). Id. at 58-59, 112 S.Ct. at 473-74. This approach was implicitly approved by Bailey itself, which remanded for consideration of sufficiency of thе evidence as to “carrying” after ruling that the evidence was insufficient as to “use.” Bailey, — U.S. at -, 116 S.Ct. at 509.

The pending case presents a different issue — whether a jury instruction, erroneous under Bailey, requires reversal. We have recently held a Bailey error in an instruction to be harmless where it could be said, based on consideration of the entire jury charge ‍​​‌‌​​​‌‌‌‌‌​‌​​​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​‌‌‌​‌​‌‌‌​​‍and the evidence, that the jury’s finding of a section 924(c) violation was the “functional equivalent,” Sullivan v. Louisiana, 508 U.S. 275, 279-81, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993), of a finding that thе firearm had been unlawfully carried. United States v. Pimentel, 83 F.3d 55 (2d Cir.1996). That conclusion was reached in Pimentel because the firearm was only in one location, and that location was immediately accessible to a co-defendant for whose offensе the appellant was liable under a Pinkerton charge.

Unlike Pimentel, the evidence in the pending ease, if accеpted by the jury, reveals that the gun could have been found to have been located at either (or both) of two locations. One location was Vasquez’s apartment. The other was оn his person when he went to a meeting with his narcotics associates. Under the instructions, the jury cоuld have improperly found the first circumstance to be “use” and properly found the secоnd circumstance to be “carrying.” Since we are unable to determine whether the verdict rested on a legally sufficient theory and the verdict is not the functional equivalent of a necеssary finding of “carrying,” we agree with the Government that the firearm conviction must be vacated.

2. Remanding for resentencing. We also agree with the Government that, in a ease such as this, a remand for consideration оf resentencing on the remaining counts ‍​​‌‌​​​‌‌‌‌‌​‌​​​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​‌‌‌​‌​‌‌‌​​‍is appropriate. Though we have not countenаnced a revision of a sentence imposed on a count unrelated to counts that wеre vacated, see United States v. Pisani, 787 F.2d 71, 75-76 (2d Cir.1986), we have recognized that Pisani is limited to the context of unrelated counts, see United States v. Bohn, 959 F.2d 389, 395 (2d Cir.1992). Pursuant to this distinction, we have frequently upheld increased sentences on remaining counts after conviction of a related section 924(e) count has been vacated. See United States v. Medina, 74 F.3d 413, 417 (2d Cir.1996); United States v. Diaz, 834 F.2d 287, 290 (2d Cir.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988); McClain v. United States, 676 F.2d 915, 918 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982).

Accordingly, the conviction on Count Thirteen (section 924(c) violation) is vacated, the convictions on the remaining counts are affirmed, and the case is remanded to permit the District Court to consider resentencing.