*1 es,3 infringe and seizure the “search did
an of the defendant which the interest designed protect.”
Fourth Amendment Illinois, 128, 140, v.
Ra kas 421, 429, L.Ed.2d 387
99 S.Ct. objectively
Officer reasonable Mitchell
concluding that he did not need Jaras’ con
sent, implied express, to search the suit
cases. America,
UNITED STATES of
Plaintiff-Appellee,
v. GARCIA, Hugo Alegria,
Walter Victor Agustin
Carlos Camacho Vivas-
Garcia, Defendants-Appellants.
No. 95-20170. Appeals,
United States Court of
Fifth Circuit. 12,
June 1996. Denying Rehearing Remanding
Order
Resentencing July
1996.
McCann,
3.
In
States
F.2d 147
contents of the car and of a briefcase therein to
denied,
Cir.1972),
cert.
412 U.S.
support
proba-
its conclusion that the officer had
(1973),
Paula Camille Michael E. Clark, Office, Houston, Attorney’s TX, for U.S. Dahlin, II,
Roland E. Federal Public De- fender, George Jr., Murphy, D. Federal Pub- Defender, Houston, TX, lic for Walter Garcia Garcia, aka Walter P. defendant-appellant. Wheelan, Houston, TX, Richelieu Edward Hugo Alegria, for defendant-appellant. Victor Fickman, Houston, TX, Robert James for Camacho, Carlos Alberto defendant-appel- lant. Pickens, Tracey
Andrew Lee Maria Rob- ertson, Jaworski, Fulbright Houston, TX, & Garcia, for Augustin Vivas defendant-appel- lant. POLITZ, Judge,
Before Chief and JONES, REYNALDO G. GARZA and Judges. Circuit GARZA, REYNALDO G. Judge: Circuit Appellants were for participating convicted conspiracy possess kilograms 166.9 cocaine with the intent Ap- to distribute it. pellant Carlos Camacho also convicted of being alien in of a fire- ammunition, using arm and and for a firearm during drug Appellants transaction. have appealed from their convictions on several grounds. briefs, Having read the reviewed arguments record considered the counsel, we appellants’ AFFIRM all of the (“Perez”) later, Perez and Al- exception while Antonio with the and sentences convictions using egría Popeye’s grey arrived Honda conviction for at Camacho’s of Carlos They parked RE- the Accord next to the transaction. We Accord. firearm Cavalier, us- A few conviction entered restaurant. RSE Carlos Camacho’s VE later, during a men restau- firearm minutes all four exited the ing a imposed upon him for Popeye’s in the Ac- the sentence rant. Garcia then left VACATE cord, conviction. other three men left Cavalier. I. FACTS Accord to Northleaf Garcia drove the (“Garcia”), Alegría Victor Walter Garcia drive, During a tele- residence. he made (“Camacho”) (“Alegría”), Carlos phone call to Northleaf residence on his *4 (“Vivas”) were Agustín Vivas-Garda and the phone. he arrived at cellular When cocaine conspiracy possess to of convicted residence, pulled Ac- Northleaf Garcia the it, aiding as intent as well to distribute the was garage. cord into While the Accord possession of cocaine with abetting the and garage, agents in the two saw Camacho it. was also the intent to distribute standing doorway, looking up in and the unlawful of a firearm of the use convicted left in Accord down the street.1 Garcia the offense, of a the commission of his Ac- within ten minutes arrival. The illegal an possession of a firearm unlawful when it riding cord was lower he left than ammunition and unlawful of alien arrived, suggests had been when he which appeal The defendants an alien. put something in the while that Garcia trunk those convictions. garage. in the the Accord was police began surveillance of Garda The Meanwhile, in a the Cavalier drove around men they observed the two and Vivas when that to be a run.” manner was believed “heat conducting they payphone were at a while is, police the That believed that the Cavalier suspected drug deal- on another surveillance attempting was to conduct countersurveil- month, 25,1994. During May the next on er police to were lance determine whether the surveil- agents conducted law enforcement conducting p.m., At the surveillance. 12:45 agents deter- on two men. The lance the a Cavalier arrived at Jack-in-the-Box res- em- regularly man was mined neither occupants All taurant. three of the Cavalier at a residence ployed, and that Garcia lived later, the Five minutes entered restaurant. (the resi- “Northleaf at Northleaf in arrived at the Jack-in-the-Box the Garcia dence”). lived conclusion that Garcia Their entered Honda. Garcia then the Jack-in- they discov- was when there later bolstered later, A and minutes Vivas the-Box. few electricity for the residence ered the Cavalier, Aleg- departed in the while Garcia in Garcia’s name. departed in the ría and Perez Honda. 29, 1994, agents were June while the On police stopped The both vehicles short surveillance, conducting at the Garcia arrived police officer the while later. A searched in a Northleaf residence Chevrolet Cavalier Honda, where he found 98.6 trunk gray pick- by a at 9:00 a.m. He was followed kilograms police of When dis- cocaine. the The occupied by two males. up truck white cocaine, Alegría the to eat a covered tried driveway and up onto truck backed the containing paper several addresses piece stayed minutes. for ten numbers, including phone phone and a.m., the Northleaf At 10:15 Garcia left All Northleaf four number residence. residence, picked Coppertree up Vivas at the men were arrested. fried Popeye’s drove apartments, investiga- police continued their Vivas exited The then chicken restaurant. Garcia and residence. Camacho A short tion at Northleaf Popeye’s. entered the vehicle and agents who jury the two insuffi- was free to believe argues that the evidence is 1. Camacho door, looking looking they the door that he out saw him out cient show testified agents did who testified agent of the three because one who did not. rather than the one However, looking not see him out door. police to search residence. allowed the essential elements of the be- offenses search, yond During police recognize their found addi- reasonable doubt. We jury utility among that the was free to all kilograms 68.3 choose tional cocaine evidence, scale, soda, room, tape reasonable constructions of the baking as well as a accept credibility and we all choices surgical masks. latter items were The support jury’s tend to verdict. packaging in of cocaine. apparently used evidence, smell, view the both direct circum- that a police testified chemical stantial, well as all cocaine, infer- reasonable they which identified with was de- evidence, in light ences from most police the house. also seized tectable Moreover, favorable the verdict. hollowpoint a .357 revolver loaded with bul- only determine whether made his carrying lets that Camacho was waist- decision, rational not whether its verdiet band. guilt was correct on the issue of or inno- trial, Garcia, Alegría, At Camacho and Vi- cence. evidence need convicted, acquitted. vas were Perez was every hypothesis exclude in- reasonable appeal The four convicted now defendants nocence. we must reverse from their convictions. if the conviction evidence in fa- construed gives equal nearly vor of verdict *5 II. DISCUSSION equal support theory circumstantial to a guilt theory a A THERE EVI- and IS SUFFICIENT innocence of the charged. DENCE THE DE- crime TO AFFIRM FENDANTS’ CONVICTIONS FOR support a conspir To conviction for AND CONSPIRACY AIDING acy possess illegal to narcotics in with the ABETTING OF POSSESSION CO- them, tent to distribute the evidence must CAINE THE WITH INTENT TO support finding existed, conspiracy that a DISTRIBUTE IT that the accused knew of conspiracy, the voluntarily joined that he it. United States All four defendants claim that there is Limones, (5th Cir.1993), v. 8 F.3d 1009 support insufficient evidence to their convic- — denied, U.S.-, cert. 114 conspiracy S.Ct. aiding tions for and for and abet- support L.Ed.2d To ting possession of convic cocaine with the intent to tion possession for of cocaine with it. Each the intent distribute defendant claims to have it, to distribute the evidence support must “merely present” during been the finding that the knowingly pos defendant and that no there is evidence with sessed cocaine the any intent to it. linking distribute defendant to cocaine. After the Tolliver, v. 1177, 1183 United States evidence, 780 F.2d reviewing the we the find that evi- (5th Cir.1986). support To a conviction for is support dence sufficient to all the defen- aiding abetting possession in convictions the conspiracy aiding dants’ distribute, tent to abetting. support evidence must finding that the accused aided and abetted both and distribution. 1. STANDARD OF REVIEW recently applicable This Court set out the 2. DISCUSSION standard of review to be used to determine Each defendant claims to have been whether there is sup- sufficient evidence to “merely present” during the cocaine transac- Dean, port a conviction. In United States tion, and there that is to insufficient evidence (5th Cir.1995), 59 F.3d this Court any link to of them the cocaine. dis-We stated: agree. ample Our review of the record found In sufficiency our review of the of the evidence to affirm each defendant’s convic- verdict, supporting jury’s evidence tion. whether, determine viewing the evidence may and the inferences that be drawn Alegría merely claims that he was light Accord, it in car, most to driving favorable which was not his verdict, a rational could have found and that there was no evidence that he knew parked there. The inference Gar- cocaine. while trunk contained Accord’s supported is about the cocaine also in the car cia knew Alegría participate did odor, Accord, which a presence of a chemical Popeye’s in the arriving at swap, Cavalier, came from the co- government and then witness said leaving Popeye’s caine, Finally, was loaded at the Northleaf residence. Accord—which reacquiring the swap— he car participation When Jack-in-the-Box. Garcia’s with cocaine—at Accord, riding which, according testimony gov- was the trunk reacquired the witness, before, expert should have indicat- is a common which lower than ernment’s something placed in the risk trafficking him that method used to minimize the ed to Finally swap. car to shield the main location trunk of detection and —and stopped incriminating drugs kept supports most are where —when destroy evidence told, to police he tried All jury’s finding guilt. there containing paper a sheet of attempting to eat support to his conviction. ample evidence numbers, includ- beeper numbers and phone merely that he was Camacho claims Northleaf resi- number of the ing phone residence, at the Northleaf and that present support is sufficient This evidence dence. no that he knew about there was evidence his conviction. evidence, pieces of how the cocaine. Several only the evidence claims Vivas ever, jury’s finding support the that Cama conducting finding supports conspiracy possess participated in the cho finding activity, not a eountersurveillance with the intent to distribute it. the cocaine pos conspiracy in a participated that he First, present at the Northleaf Camacho was it. intent to distribute cocaine with the sess cocaine transac at the time of the residence this Court has held points out that He supports strong chemical odor also tion. activity, with of eountersurveillance evidence cocaine, inference that he knew about *6 further inference supporting the out evidence noticed the odor. he would have because was that he or she a defendant knew that residence on his called the Northleaf Garcia for a cocaine conducting countersurveillance driving the Accord phone while cellular support a con is insufficient there, that he supports which the inference United States spiracy conviction. See that he was calling to inform Camacho was Cir.1995). (5th Dean, 1479, In F.3d 1487 59 to load the come to the residence about case, however, the evidence showed this Further, two into the Accord. cocaine activity. just more than eountersurveillance looking out the agents observed Camacho found example, fingerprints were Vivas’ For while the the Northleaf residence door of in found both packages of cocaine on supports the parked This Accord was there. residence. and at the Northleaf Accord looking for law out inference that partic with his fingerprints, combined These loading co was while Garcia enforcement swap, in constitute sufficient ipation the car was Finally, Camacho caine into the car. conviction. evidence to affirm Vivas’ magnum police when the carrying a .357 residence, sup which the Northleaf searched to have been also claims Garcia guarding that he was ports the inference during transac merely present the cocaine told, evidence is sufficient cocaine. All claim, however, is rebutted His tion. affirm Camacho’s conviction. was tes presented at trial. There evidence Northleaf lived at the timony that Garcia DID NOT B. THE TRIAL COURT residence, cocaine police where found IN AL- ABUSE ITS DISCRETION that the North- paraphernalia, and cocaine THE GOVERNMENT’S LOWING in bill was Garcia’s electric leaf residence’s A TO OPINE THAT EXPERT Further, the Northleaf called name. Garcia TRAFFICKING COCAINE LARGE phone while driv cellular from his residence CONTROLLED ORGANIZATION testified Popeye’s. An officer ing there from COCAINE SEIZED THE Garcia left rode lower after that the Accord dis did not abuse its residence, The trial court the in supporting the Northleaf Bell, government allowing Agent in cretion with cocaine ear was loaded that the ference 400
witness, testify the seized cocaine was “stash houses” and conduct “heat runs.” Therefore, drug testimony trafficking organi- Agent to that large controlled Bell’s helpful. as to how Agent zation. Bell testified most effect was organizations operate, large drug trafficking the trial court did not abuse large trafficking cocaine opined that a refusing its to admit discretion the testi organization the cocaine that was controlled mony under Rule 403. defendants— present seized in case. defendants citing authority any without —claim testimony contend such inadmissible Agent testimony impermissibly put Bell’s 702, under Federal Rule of Evidence which “expert’s stamp approval” govern on the requires testimony expert helpful, to be theory. disagree. Agent ment’s Bell’s 403, under Evidence which Federal Rule of testimony unfairly prejudicial. was not In “may evidence provides that relevant be ex- fact, it prejudicial expert was no more than substantially if value is probative cluded its testimony approved we have other outweighed prejudice of unfair danger See, e.g. Speer, cases. States v. United 30 [or] confusion of the issues----” 605, (5th Cir.1994), denied, F.3d 610 cert. expert admissibility testimony “The -, 768, U.S. 130 S.Ct. L.Ed.2d 664 discretion of rests within the sound the dis (1995) (affirming expert the admission of tes- only upon trict reversed court and will be timony to the pos- effect that defendant’s showing clear discretion.” abuse Unit purchase session of scales of thir- (5th Townsend, 262, 31 F.3d ed States v. ty grams of cocaine consistent Cir.1994) Charroux, (citing States v. United 3 trafficking personal consump- rather than Cir.1993)), F.3d cert. de tion). We therefore hold the trial court - nied, -, 130 did not in admitting abuse its discretion L.Ed.2d 668 We have held that a testimony. testify agent may signifi- narcotics about the cance of of opera- certain conduct methods C. THE TRIAL COURT DID NOT unique long tion business so ERR IN DETERMINING VIVAS’ testimony helpful and its relevance is SENTENCE substantially outweighed by possibili- We hold trial that the court did not ty of prejudice unfair or confusion. See err in determining Vivas’ sentence. Vivas Washington, States v. F.3d *7 claims that calculating the trial court erred — denied, Cir.), U.S.-, 1283 cert. upon his base offense level based the total (1995). 2011, 115 S.Ct. L.Ed.2d 131 1010 amount of cocaine seized the Northleaf Therefore, we will not disturb the trial argues residence and the He Accord. ruling it long court’s so as did not abuse its the trial findings court did not make' the finding Agent discretion in Bell’s testi- necessary to hold him accountable for the mony helpful, testimony’s that the and entire kilograms 166.9 of cocaine. We dis substantially outweighed relevance was not agree. Our the review of record indicates by possibility prejudice the of unfair or con- necessary that the trial court made the find fusion. ings, supported and that findings its were The trial court did abuse its not discretion the in evidence this case.
in finding Agent
testimony helpful.
Bell’s
the
findings
We review
factual
The
testimony
defendants claimed
his
sentencing
made
the district
at the
court
helpful
was not
because the
could have
hearing for clear error. United States v.
drawn its own
conclusion
to whether a
Dean,
(5th Cir.1995).
1479, 1494
59 F.3d
We
large organization
trafficking
controlled
application
review the district
court’s
the
disagree.
average ju-
the cocaine. We
The
sentencing guidelines
novo. Id.
de
may
ror
presence
not be aware that the
1B1.3,
kilograms
§
166.9
of cocaine is indicative of a
Under U.S.S.G.
Vivas is re
large drug
organization,
sponsible
trafficking
may
quantities
and
for all
of cocaine with
not
large drug trafficking
be aware that
which
directly
or-
involved and “all rea
ganizations commonly
sonably
swaps,”
quantities
use “car
foreseeable
[cocaine]
specifically disputed issues
resolve the
criminal must
scope of the
within
that were
holdings as a
if it intends to use those
In order
of fact
jointly undertook.”
activity
he
v.
for its sentence.” United States
quanti-
basis
accountable
a defendant
to hold
(5th Cir.1994).
Smith,
860,
Be-
possession of
13 F.3d
in the
found
of cocaine
ties
objected
trial court’s consid-
requires that the dis-
he
cause
party, this Court
third
kilograms
cocaine be
of co-
amount of
of the entire 166.9
that the
eration
court find
trict
caine,
argues,
to the defendant
trial court could not
reasonably
he
foreseeable
both
jointly undertak-
scope
report
without re-
rely
presentenee
on the
within
the defendant
activity for which
solving
issue of the amount attributable
en criminal
Dean,
court, however,
at 1495.
59 F.3d
being sentenced.
resolved
to him. The trial
implicitly make such
can
specifically
district court
disputed
factual
issue
report.
presentence
findings by adopting
objection
sentencing
overruling
at the
Vivas’
Puig-Infante, 19 F.3d
v.
States
Thus,
hearing.
hold that the trial court
denied,
-,
(5th Cir.),
cert.
findings
upon the
contained
properly relied
180, 130L.Ed.2d 115
report.
in
presentence
necessary find-
court made the
The district
DID
THE
COURT
NOT
D.
DISTRICT
report.
adopting
presentence
ings by
ERR IN COMMENTING UPON CA-
report
indicated that
presentence
MACHO’SNATIONALITY DURING
was reason-
kilograms of cocaine
166.9
entire
DIRE
VOIR
Garcia,
Vivas,
ably foreseeable
in
one another
“aided
Vivas
in
The district court did
err
cocaine,
transporting the total of
housing and
may
mentioning that Camacho
be Colum
from both the
kilograms, confiscated
166.9
charged
voir dire. Camacho was
bian
Thus,
district
and vehicle.”2
residence
with,
of, being
an
alien
and convicted
necessary
findings
made the
implicitly
court
ammunition.
in
of a firearm and
on the entire
offense level
to base Vivas’
complains that the trial court became an
He
adopted
pre-
it
of cocaine when
amount
by advising
government
for the
advocate
report.
sentence
jury during voir dire that he was Columbian.
government had the
points out that the
He
hold that
the district
further
alien,
proving
that he was
burden
findings
adopting
not err
court did
court shifted that
that the district
contends
report. There
presentence
in the
contained
through
dire
its voir
burden to Camacho
account
to hold Vivas
evidence
was sufficient
questioning.
in the Accord
the cocaine seized
able for
transac
participated
because
Rule of Criminal Procedure
Under Federal
Accord.
there
involving tion
judge
a trial
“has broad discretion
dire____”
hold Vivas account
evidence to
was sufficient
United States
conduct of voir
at the Northleaf
(5th Cir.1982)
the cocaine found
Black,
able for
(per
685 F.2d
*8
fingerprints were
because Vivas’
curiam).
residence
only
a conviction
will
overturn
containing the co
packages
found on
scope and conduct of voir
upon the
based
Thus,
err in
court did not
the district
caine.
the trial court
if
find both that
dire
determining
sentence.
Vivas’
rights
and that the
its discretion
abused
by that
prejudiced
the accused have been
trial
Vivas also contends
case,
an
In
we find neither
abuse
abuse.
this
rely
to
on
have been able
court should not
any
to
prejudice
nor
Camacho’s
of discretion
report
findings
presentence
made in the
rights.
findings.
points
He
disputed the
because
following
complains about
a defen
“[w]hen
that we have stated
out
during
district court
made
findings in the
statement
objects
particular
dant
voir dire:
sentencing court
report,
presentence
27, 1995,
February
report
on
report
was made
presentence
con-
tence
claims that the
2. Vivas
were
addendum
findings
contained
findings.
an adden-
tained no such
adopted adopted by
court when it
the district
report
such
presentence
did contain
to the
dum
report
1995.
presentence
on March
presen-
findings.
the addendum
Because
defendants, Spanish
For these
is their first
We hold that the district court nei
are,
them,
believe,
language, they
all of
I
ther
prejudiced
abused its discretion nor
Ca
Columbia____let
ask,
all,
first of
rights
me
macho’s
in its conduct of voir dire.
anybody
if
who
encouraged—
there is
here
feels that We and our sister courts have
they may
required
biased or influenced somehow sometimes even
in
be
courts to
—trial
quire
against
speakers
they
possible
because
about
preju
these
are
racial or ethnic
See,
English speakers
during
not native
dice
voir dire.
generally,
because
Columbia,
they
Wright,
are from
who
Charles Allen
feels that
Federal Practice and
§
they
leanings
case,
Procedure
might
against
have some
In this
against
simply
trial court
inquiring
possi
these folks or some bias
these folks
about
they
English speakers
prejudice,
not
ble
acting
because
are
as an advocate for
problem
government
concept
instructing
jury
have some
with the whole
or
using interpreters
or
find that
illegal
notion of us
this
Camacho was an
alien.
It
gentlemen
courtroom
these
to assist
in un- was within the trial court’s discretion to
derstanding
proceedings
against
these
inquiry.
make such an
we find that
them.
any
curative instructions
preju
remedied
dice caused
the trial court’s statements.
attorney objected, stating
Camacho’s
government’s
I think it is the
burden to
E. THERE IS INSUFFICIENT EVI-
from,
prove
people
particularly
where
are
DENCE TO SUPPORT CAMA-
my
since
client
being
is accused of
an
CHO’S CONVICTION FOR THE
particularly
alien.
I am
concerned
USE
AOF
FIREARM DURING A
with that.
DRUG OFFENSE
jury
The trial court then instructed the
There is insufficient evidence to
follows:
support Camacho’s conviction for the use of a
right,
gentlemen,
All
ladies
I indicated
during
firearm
offense. Camacho
you
ago
a few moments
that I believe all
claims that
the evidence is insufficient to
defendants
this case were from convict him for the
during
use
a firearm
may
Columbia and I
be mistaken on that.
drug offense in violation of 18 U.S.C.
There is some indication that one or more
924(c).
§
alleged
The indictment
that Cama
may
Columbia,
of them
not be from
but
cho
knowingly
“did
during
use a firearm ...
may be from other Latin American coun-
and in relation to
drug trafficking
tries.
crime----” A
Supreme
recent
Court case
held that mere
does not constitute
government
responds by arguing that
924(c).
§
“use” under 18 U.S.C.
Bailey v.
the trial
simply
court
any
tried to discover if
States,
U.S.-,
venirepersons
prejudiced against
were
Co-
(1995). Rather,
way. inference time, At that I pistol. carried it butt of the is that he was the from that evidence drawn while Gar- serving as a lookout took it out of his waistband. while into the Accord. loading the cocaine cia was however, cross-examination, Garcia During merely shows Bailey, this evidence Under why that he did not know Camacho admitted Therefore, not show use. it does possession, waist, reaching his that Camacho toward to affirm Cama- insufficient evidence is try taking did not to interfere with Garcia’s during of a firearm conviction for “use” cho’s waistband, and that gun from his Cama- drug a offense. gun. Garcia’s cho allowed Garcia to take that used the dissent claims Camacho The testimony insufficient to show that Cama- is carrying guarded it while pistol gun by reaching for it. Had cho used the cocaine, reaching for it when Garcia testimony that Camacho brand- there been bulge in his waistband. inquired about the gun by pulling threatening it out or ished the disagree. are forced We it, would be evidence Garcia with then there case, in this the fact that Cama- of use. But First, pistol not the merely carrying the is hand toward his waistband for cho moved his Although the dissent cor using it. same as allowing 924(c)(1) before reasons unknown to Garcia criminal rectly points out Section pistol is insufficient Garcia to remove carrying a of a firearm and both the use izes beyond transaction, a to find a reason- evidence for drug we cannot during a firearm pistol. “cany” able doubt that Camacho used the “use” and are agree that the words or stat It is a “cardinal canon synonymous. The fact that Camacho could have been interpreting a ... that utory [in construction carrying under the same statute for indicted statute,] given of a statute will be the words indict- a firearm is irrelevant. Camacho was Industry Food meaning____” Texas plain their firearm, using carrying one. ed for Dept. Agri States oc. v. United Ass there is insufficient evidence Because Cir.1996). culture, 81 F.3d during drug he used a firearm show that “use” is “the act meaning of the word plain transaction, his 18 we must reverse U.S.C. something,” using while practice of or 924(e) § conviction. hold, carry “to meaning plain of the word person.” Web upon one’s wear or have III. CONCLUSION Dictionary 343, 2523 Third New Int’l ster’s appellants’ convic- AFFIRM all ease, although Camacho’s In this exception of with the tions and sentences consti pistol in his waistband concealing the using a fire- conviction for Carlos Camacho’s wearing upon person his holding or it tuted RE- during transaction. We arm (i.e. it); “the act carrying it did not constitute conviction for us- Carlos’ Camacho’s VERSE Thus, con using it.” Id. practice ing a firearm merely carrying pistol concealed clude imposed upon him for the sentence VACATE the use of did not constitute his waistband conviction. pistol. Second, evidence is insuf- we find JONES, Judge, EDITH H. Circuit pistol used ficient to show Camacho dissenting part: confronted law by reaching for it when only which the evidence from Although pleased officers. I to concur am inference that argues thorough opinion up- that an government majority panel’s may pistol sentences, be for the I reached holding Camacho these convictions testimony Garcia. disagree of Officer point. is the I drawn dissent on one must that, he asked when majority appellant Garcia testified Camacho’s panel Officer waistband, bulge in his dur- about “use” of a firearm conviction for reversed for ing drug offense must be kind of respond ... He didn’t [Camacho] government ac- As the evidence. shirt was insufficient and went for—the down looked *10 that re- knowledges instructional error in bulge that was his waistband. over the remand, I believe just quires reversal and bulge quick and real I went for the disposition of this made firearm in appropriate count “use” of the his waistband. was respectfully I dissent. conviction. of majority likens conduct to ON Camacho’s PETITION FOR REHEARING firearm, possession” conduct “mere July Supreme found which the Court different petition IT IS ORDERED that for type contemplated “use” active rehearing by the filed United States of 924(c)(1). Bailey § v. by 18 U.S.C. United America, above, Plaintiff-Appellee, is DE- States, -, NIED. respect, L.Ed.2d 472 due I With the ease remanded for resen- Bailey addressing factually was dis believe See, tencing of Carlos Camacho. United cases in which had been tinct defendants (5th Andrade, Cir.1996). States v. F.3d 729 charged with “use” of firearms that were mattresses, hidden under located in locked cars,
trunks and were otherwise stored See, e.g., out of reach. United States v.
Andrade,
Cir.1996).
pistol even reaching as Camacho was himself it. Whether acts these constituted
“brandishing” “displaying” pre- firearm
sented, view, my jury question. If the
jury believed that Camacho armed pistol immediately available to him as he house,
guarded the actively stash
using it meaning within the of section
924(c)(1). majority acknowledges that Camacho
could have been for “carrying” indicted 924(c)(1),
firearm under agree section and I
that would possible. Bailey have been does
not, however, specify carrying using mutually
firearms are exclusive comes within rather, statutory provision;
the same it held use interpreted broadly could not be so completely
as to subsume the crime of
carrying. problem No such arises on the
facts this case.
I would hold that because Camacho was
personally armed the course of his offense, in furthering
conduct