United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2001 Decided May 1, 2001
No. 00-3033
United States of America,
Appellee
v.
Maurice Leo Stewart,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 91cr00593-03)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A. J. Kramer, Federal Public Defender. Jennifer M. Blunt,
Assistant Federal Public Defender, entered an appearance.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, at the time the brief was filed, John R.
Fisher and Mary-Patrice Brown, Assistant U.S. Attorneys.
Before: Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Appellant Maurice Leo Stewart
pleaded guilty to conspiring to distribute fifty or more grams
of cocaine base, see 21 U.S.C. ss 841(a)(1), 841(b)(1)(A)(iii),
846, and conspiring to obtain firearms during and in relation
to a drug trafficking offense, see 18 U.S.C. ss 371, 924(c). In
light of the Supreme Court's decision in Bailey v. United
States, 516 U.S. 137 (1995), Stewart filed a collateral review
motion challenging his conviction on the ground that his
receipt of firearms was not a "use" under 18 U.S.C. s 924(c).
The district court denied Stewart's motion, holding that a
person who receives a gun in exchange for drugs "uses" the
gun within s 924(c)'s meaning. For the reasons set forth
below, we reverse and remand.
I. BACKGROUND
In the Spring of 1991, Maurice Stewart, Richard Shorter,
and Damon Edwards sold crack cocaine to undercover police
officers on a number of occasions. During one of those sales,
Stewart and Shorter asked the officers about their plans for
the weekend. When the officers told the suspects that they
were "running guns," Stewart asked if he "could also get him
an AK-47." One of the officers said that he would have to
check with his cousin, who actually ran the guns.
Several weeks later, during another drug sale, Stewart and
Shorter "again brought up the possible purchase of the guns,"
asking the officers if they could buy two nine-millimeter guns
for $500. Over the next week, the defendants finalized a deal
with the officers. On May 10, Stewart and Shorter accompa- nied the officers to a house in Northwest Washington, D.C.,
where the officers gave Gary Stewart, another of Maurice
Stewart's co-conspirators, $7,000 in exchange for 250 grams
of crack. At the time, the officers also agreed to give
Maurice Stewart and the others a bag of guns as part of the
transaction. Maurice Stewart and Shorter then accompanied
the officers to another location, where the officers gave the
guns to Stewart. Immediately, Stewart and Shorter were
arrested. See United States v. (Gary) Stewart, 104 F.3d
1377, 1380 (D.C. Cir. 1997).
After a grand jury issued a seventeen count indictment
against Stewart and his three co-conspirators, Stewart plead- ed guilty to two counts: (1) conspiracy to distribute fifty or
more grams of cocaine base, see 21 U.S.C. ss 841(a)(1),
841(b)(a)(A)(iii), 846, and (2) conspiracy to obtain one or more
firearms during and in relation to a drug trafficking crime,
see 18 U.S.C. ss 371, 924(c). The district court sentenced
Stewart to 188 months imprisonment on the first count and 60
months imprisonment on the second count. The court or- dered that the two sentences be served concurrently and
followed by five years of supervised release. On direct
appeal, this Court affirmed Stewart's sentence. See United
States v. (Maurice) Stewart, 36 F.3d 127 (D.C. Cir. 1994)
(unpublished table decision).
Following the Supreme Court's decision in Bailey v. United
States, 516 U.S. 137 (1995), Stewart filed a collateral review
motion under 28 U.S.C. s 2255 challenging his conviction on
the ground that his passive receipt of the guns was not a
"use" under 18 U.S.C. s 924(c). The district court denied
this motion, holding that "selling drugs in exchange for guns
clearly constitutes 'use' within the meaning of s 924(c)."
United States v. Stewart, Crim. No. 91-593, mem. at 4
(D.D.C. Mar. 10, 2000). Stewart appeals from that decision.
II. ANALYSIS
By failing to challenge the validity of his plea in his direct
appeal, Stewart procedurally defaulted the claim he now
makes. See Bousley v. United States, 523 U.S. 614, 622
(1998). Stewart can raise his claim on collateral review only
if he "can first demonstrate either cause and actual prejudice
or that he is actually innocent." Id. (citations and internal
quotations omitted).1 We begin by noting that the district
court did not consider whether Stewart's procedural default
could be excused. Rather, it held that Stewart was not
entitled to relief because his claim was "meritless." Stewart,
mem. at 3. We therefore limit our review to the legal
question presented in Stewart's habeas corpus motion, setting
aside the questions of whether his procedural default may be
excused and whether Stewart should ultimately obtain relief.
At the time of Stewart's arrest, 18 U.S.C. s 924(c)(1)
provided: "Whoever, during and in relation to any ... drug
trafficking crime ... uses or carries a firearm, shall, in
addition to the punishment provided for such crime ..., be
sentenced to imprisonment for five years." Several months
after Stewart pleaded guilty, this Court issued its decision in
United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992) (per
curiam). The Harris defendants had been convicted of violat- ing s 924(c)(1) by receiving guns in exchange for drugs. The
defendants appealed their convictions, arguing that the guns
were not used "in relation to" a drug crime because they were
used as "a medium of exchange in a trade for drugs and not
as offensive or defensive weapons." Id. at 261. We rejected
this argument and held that s 924(c) "requires no more than
that the guns facilitate the predicate offense in some way."
Id. Specifically, we explained that "this requirement is met
'[i]f the firearm is within the possession or control of a person
who commits an underlying crime ..., and the circumstances
of the case show that the firearm facilitated or had a role in
the crime.' " Id. (quoting United States v. (Richard) Stewart,
779 F.2d 538, 540 (9th Cir. 1985)). We concluded that "once
the [firearm] passed into appellants' hands the facilitative
nexus was satisfied." Id.
The following year, in Smith v. United States, 508 U.S. 223
(1993), the Supreme Court upheld the conviction of a defen- __________
1 Although the motion we review in this case is Stewart's second
motion for collateral review, the limitations established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, s 105, 110 Stat. 1214, 1220, do not apply because Stewart
filed the present motion two days before the Act's effective date.
dant who had traded a gun for drugs. Id. at 225. The Smith
Court held that "one who transports, exports, sells, or trades
a firearm 'uses' it" in violation of s 924(c)(1). Id. at 234-35.
In arriving at this holding, the Court described a number of
different "everyday meaning[s]" for "use," including: "to
employ," "to avail oneself of," and "to derive service from."
Id. at 228-29 (internal quotes omitted). In light of these
definitions, the Court explained that the Smith defendant had
used a gun as "an item of barter ... to bring him the very
drugs he sought." Id. at 229. Echoing our decision in
Harris, the Court noted that "the gun at least must 'facili- tat[e], or ha[ve] the potential of facilitating,' the drug traffick- ing offense." Id. at 238 (quoting (Richard) Stewart, 779 F.2d
at 540).
Two years later, the Supreme Court issued its Bailey
decision, which "clarif[ied] the meaning of 'use' under
s 924(c)(1)." 516 U.S. at 142. In Bailey, the Court held that
"s 924(c)(1) 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." Id. at 143. In its discussion, the Court
again emphasized that "use" should be "given its 'ordinary
and natural' meaning." Id. at 145 (quoting Smith, 508 U.S. at
228). Distinguishing between the terms "use" and "carry" in
s 924(c)(1), the Court explained that "a firearm can be used
without being carried, e.g., when an offender ... barters with
a firearm without handling it." Id. at 146. The Court
underscored that its decision "is not inconsistent with Smith,"
explicitly recognizing that the "active-employment under- standing of 'use' certainly includes ... bartering." Id. at 148.
In Bailey's wake, five of our sister circuits have considered
whether a person who receives a gun in exchange for drugs
"uses" the gun within the meaning of s 924(c). Three of
those circuits have held that a receiving defendant uses the
gun, see United States v. Ramirez-Rangle, 103 F.3d 1501,
1506 (9th Cir. 1997); United States v. Ulloa, 94 F.3d 949, 956
(5th Cir. 1996); United States v. Cannon, 88 F.3d 1495, 1509
(8th Cir. 1996), while two have held that he does not, see
United States v. Warwick, 167 F.3d 965, 975-76 (6th Cir.
1999); United States v. Westmoreland, 122 F.3d 431, 435 (7th
Cir. 1997).
Consistent with the "ordinary meaning" approach employed
by the Supreme Court in Smith and Bailey, we cannot see
how a defendant "uses" a gun when he receives it during a
drug transaction. The recipient has not employed the gun,
availed himself of the gun, or derived any service from the
gun by simply trading his drugs for it. Cf. Smith, 508 U.S. at
229. Indeed, nothing in a person's acceptance of a gun
embodies the active employment demanded by the Court in
Bailey. See 516 U.S. at 142. We therefore agree with the
Sixth and Seventh Circuits that a person who receives a gun
in a trade for drugs has not used the gun in violation of
s 924(c).
As the Seventh Circuit succinctly stated in United States v.
Westmoreland, "there is no grammatically correct way to
express that a person receiving a payment is thereby 'using'
the payment." 122 F.3d at 435. Quite simply, a "seller does
not 'use' a buyer's consideration." Id. at 436. For example,
when a person pays a cashier a dollar for a cup of coffee in
the courthouse cafeteria, the customer has not used the
coffee. He has only used the dollar bill. We see no differ- ence when a person pays for a gun with drugs.
In response to Stewart's motion, the Government contends
that Harris is still the law of this Circuit. This contention is
based on the Supreme Court's statement that our Harris
decision came to the "same conclusion" as the Eleventh
Circuit decision the Court affirmed in Smith. 508 U.S. at
227. While the Government's suggestion may be alluring, the
interpretation of "use" we employed in Harris does not
survive after Bailey.
In making this argument, the Government essentially asks
us to interpret Smith more broadly than the Court itself did
in Bailey. The Bailey Court carefully noted that its holding
was "not inconsistent" with the interpretation it announced in
Smith. 516 U.S. at 148. The Court, however, explained that
the Smith decision addressed only "whether that particular
use (bartering) came within the meaning of s 924(c)(1)." Id.
(emphasis added). Indeed, the Smith Court only "con- clude[d] that using a firearm in a guns-for-drugs trade may
constitute 'us[ing] a firearm' within the meaning of
s 924(c)(1)." 508 U.S. at 237 (emphasis added). The Bailey
Court explained that this conclusion "adhered to an active
meaning" of the word "use" because "it was clear that the
defendant had 'used' the gun." 516 U.S. at 148. In fact, the
Smith Court made clear that the defendant had " 'used' his
MAC-10 in an attempt to obtain drugs by offering to trade it
for cocaine." 508 U.S. at 228. There is no similar way to say
that the recipient of a gun has "used" the gun when he offers
to trade his drugs for it. Neither Smith nor Bailey conclud- ed that receiving a firearm in a drugs-for-guns trade consti- tutes using a firearm. In this case, Stewart bartered for a
firearm, he did not barter with a firearm like the Smith
defendant. See United States v. Ulloa, 94 F.3d 949, 958 (5th
Cir. 1996) (Politz, J., dissenting). Accordingly, neither Bailey
nor Smith foreclose Stewart's claim, and, read together, those
decisions foreclose the possibility that Harris is still viable.
As the Government correctly notes, the Bailey Court did
list "bartering" as an example of an activity that "fall[s]
within 'active employment.' " 516 U.S. at 148. But that
language by the Supreme Court must be taken in context.
The Supreme Court included "bartering" in a list of examples
of active employments that might fall within the s 924(c)(1)
definitions of "use." The Supreme Court did not purport to
be encompassing every possible situation involving barter as a
violation of that statute. Significantly, that discussion fol- lowed the Court's analysis of Smith, in which the defendant's
use of a firearm had been the trading of it for drugs. In
context, therefore, the Supreme Court's understanding of
Congress's intent to afford the term "use" its "active connota- tion," id. at 148, includes situations in which a defendant
barters a firearm in return for drugs. The Supreme Court's
inclusion of the word "bartering" in the list of active uses
implies no more than that. It does not compel a conclusion
that a person who barters drugs to acquire a firearm has
used the firearm, as opposed to using the drugs. As we
explained above, a person who receives a gun has not actively
employed the gun--that is, he has not "used" it within any
ordinary understanding of the word "use."
The Government next argues that the reasoning in War- wick and Westmoreland is unpersuasive because those cases
presented "very different factual situations" than the one
before us. Appellee's Br. at 17. The Government suggests
that both cases turned on conclusions that the defendants
merely acquiesced to receiving guns as payment for drugs.
See id. (citing Warwick, 167 F.3d at 975-76, and Westmore- land, 122 F.3d at 435-36). In contrast, the Government
claims that Stewart initiated and negotiated the exchange of
drugs for guns. We do not understand why this supposed
factual distinction should affect the purely legal question
presented in this case. It does not matter whether a drug
dealer initiates a drugs-for-guns transaction or simply agrees
to (and does) trade drugs for guns in lieu of money (or some
other consideration). Under either scenario, the drug dealer
has not used the gun within the meaning of s 924(c).
In any case, nothing in the record shows that Stewart or
any of his co-conspirators initiated the idea of trading their
drugs for guns. Indeed, the officers first injected guns into
their discussions by stating that they were "running guns."
The record reflects that Stewart wanted to obtain guns, but it
only states that he and his co-conspirators asked to purchase
the guns for money. While the defendants and the officers
discussed "the gun transactions" and "finalized the transac- tion of guns for drugs," nothing in the record shows that the
defendants asked to trade drugs for the guns. Certainly, the
defendants agreed to such a transaction, but there is no more
evidence that they initiated the exchange of drugs (as op- posed to money) for guns than there was in Westmoreland or
Warwick.
Finally, the Government argues that even under the inter- pretation of "use" we adopt today Stewart's conviction should
be upheld because he pleaded guilty to conspiring to violate
s 924(c)(1). In other words, the Government believes that
Stewart acknowledged he conspired to use a gun in relation
to a later drug trafficking crime. To buttress this belief, the
Government cites Stewart's plea colloquy, during which the
prosecutor claimed that the Government could have proven
that Stewart "conspired to obtain firearms to use and carry
them during and in relation to a drug trafficking offense."
Yet, the Government proffered no facts to support a convic- tion on this ground. See In re Sealed Case, 153 F.3d 759, 771
(D.C. Cir. 1998). Furthermore, the signed plea agreement
does not allude to such a theory. Instead, it merely states
that Stewart engaged in a "Conspiracy to Obtain One or
More Firearms During and in Relation to a Drug Trafficking
Crime."
III. CONCLUSION
Although our discussion makes clear that a person who
receives a gun in exchange for drugs is not using the gun
under s 924(c), we must remand this case to the district court
to afford Stewart an opportunity to establish that his proce- dural default should be excused. As the district court prop- erly recognized, Stewart's default is excused if he can demon- strate cause and prejudice, or his actual innocence. See
Bousley, 523 U.S. at 622. " 'Actual innocence' means factual
innocence"; it does not mean "mere legal insufficiency." Id. at
623. Accordingly, to establish actual innocence, Stewart must
demonstrate that " 'in light of all the evidence,' 'it is more
likely than not that no reasonable juror would have convicted
him.' " Id. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327- 28 (1995) (internal quotation omitted)).
In Bousely, a case whose procedural posture is substantial- ly similar to the one now before us, the Supreme Court
provided explicit instructions for how a case such as this one
should proceed on remand:
[T]he Government is not limited to the existing record to
rebut any showing that the petitioner might make.
Rather, on remand, the Government should be permitted
to present any admissible evidence of petitioner's guilt
even if that evidence was not presented during petition-
er's plea colloquy and would not normally have been
offered before [the Court's] decision in Bailey. In cases
where the Government has forgone more serious charges
in the course of plea bargaining, petitioner's showing of
actual innocence must also extend to those charges.
Id. at 624 (footnote omitted). For the reasons stated above,
the district court's judgment is reversed, and the case is
remanded for further proceedings consistent with this deci- sion.