The opinion of the court was delivered by: KRAM
SHIRLEY WOHL KRAM, U.S.D.J.
In a second superseding indictment filed in October 1989 in a multi-defendant case, petitioner Rodriguez was charged with (1) one count of conspiracy to violate the narcotics laws of the United States, in violation of 21 U.S.C. §§ 812, 841(a) (1), 841(b) (1) (A) and 846 (Count One); (2) one count of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (A) and 18 U.S.C. § 2 (Count Eleven); and (3) using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and 924(c) (Count Thirteen).
On May 23, 1990, Rodriguez entered guilty pleas to 21 U.S.C. § 841(b) (1) (B) (a lesser included offense of Count One) and the firearm charge contained in Count Thirteen, pursuant to a plea agreement with the Government (the "Plea Agreement"). On February 13, 1991, the Court sentenced Rodriguez to sixty-three months on the conspiracy count (Count One) and a consecutive sentence of sixty months on the section 924(c) count (Count Thirteen). The Court also imposed a five-year term of supervised release and a special assessment of $ 100. At that time, on the Government's motion, the Court dismissed all other outstanding charges against Rodriguez as required by the Plea Agreement. Rodriguez subsequently appealed her sentence to the Second Circuit Court of Appeals and later filed a motion to correct her sentence in this Court, pursuant to 28 U.S.C. § 2255, but relief was denied in both instances.
In her current section 2255 petition, Rodriguez moves to vacate the judgment of conviction entered against her on Count Thirteen based on the Supreme Court's decision in Bailey v. United States. The Court in Bailey held that in order to sustain a conviction under section 924(c) (1), the Government must prove "active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey v. United States, U.S. at , 116 S. Ct. at 505 (emphasis in original). Although the courts have yet to decide precisely what activity constitutes "active employment," the Bailey Court has provided some guidance, noting that "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire" a weapon satisfies section 924(c)(1). Id. at , 116 S. Ct. at 508.
The Government does not oppose petitioner's motion, conceding that the evidence would not support a section 924(c) conviction under Bailey. As stated by Rodriguez during her plea allocution:
On April 30, 1989 I was employed as a bagger in a heroin mill run by the Rivera organization. On that date I was aware that weapons were present on the premises for the protection of the mill. I did not possess any weapons but was aware that there were weapons in the apartment. I was aware that the heroin was in excess of 100 grams that was packaged in the apartment, that the heroin in the apartment would be distributed by the Rivera organization.
Tr. of Plea, dated May 23, 1990, annexed to Gov't's letter to the Hon. Shirley Wohl Kram, dated Mar. 19, 1996, as Exh. "D," at 9-10. During its own summary of the evidence against the defendant, the Government did not offer any indication that it would prove more than the fact that Rodriguez knew that weapons were present and available for use if necessary. Id. at 10. As this evidence establishes only the "inert presence of a firearm," a circumstance insufficient to sustain a conviction under section 924(c) (1), see Bailey v. United States, U.S. at , 116 S. Ct. at 508, the parties agree that Count Thirteen must be vacated. The Court now must determine the remedy required as a result of Rodriguez's successful petition.
Before addressing the Government's contentions, the Court first notes that Rodriguez satisfies all of the procedural requirements for bringing the instant section 2255 petition. First, because Bailey effected a change in the substantive meaning of a criminal statute, rather than merely establishing a new constitutional rule of criminal procedure, it must be applied retroactively. United States v. Turner, 914 F. Supp. 48, 48-50 (W.D.N.Y. 1996); Abreu v. United States, 911 F. Supp. 203, 206-07 (E.D. Va. 1996); Bell v. United States, 917 F. Supp. 681, 683-84 (E.D. Mo. 1996).
In order to bring her claim at this stage, petitioner must also establish cause and prejudice based on her failure to raise the claim earlier. Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993). Here, Rodriguez has established good cause for failure to raise this argument, as the new law upon which she relies was not decided until after her conviction became final. Abreu v. United States, 911 F. Supp. at 207; Bell v. United States, 917 F. Supp. at 684. Rodriguez also has established actual prejudice since a failure to vacate her conviction on Count Thirteen would constitute "a complete miscarriage of justice." See Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Because Bailey applies to the present case and all procedural requirements are satisfied, petitioner's motion to vacate Count Thirteen is granted.
II. Reinstatement of Indictment
Although the Government concedes that Count Thirteen should be vacated, it argues that the proper remedy would be to vacate the plea and sentence for both counts to which she pled guilty and restore Counts One and Eleven of the indictment. The Government theorizes that Rodriguez's motion to vacate constitutes a tacit repudiation of the Plea Agreement, and the effect of ...