The opinion of the court was delivered by: SAND
In this action, brought pursuant to 28 U.S.C. § 2255, Petitioner Luis Polanco ("Polanco") has moved to vacate his judgment, conviction, and sentence, and for release on bail, in light of recent clarification by the Supreme Court of what constitutes "use" of a firearm under 18 U.S.C. § 924(c), see Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995). For the reasons stated herein, we deny Polanco's motions.
The offense conduct behind Polanco's criminal conviction involved narcotics sales transpiring inside apartment # 14, 209 West 108th Street, New York, New York, which is located within one-thousand feet of P.S. 165, a public school. On June 28, 1989, a confidential informant working with the Drug Enforcement Agency ("DEA") was led into the apartment by Polanco to purchase cocaine; Polanco's co-defendant Ricardo Camacho ("Camacho") effected the sale.
On July 26, 1989, a second confidential informant, James Joy ("Joy"), also working with the DEA, went to apartment # 14 to purchase cocaine. Polanco, sitting in the living room at the bar, measured out nine grams of cocaine and sold it to Joy, after negotiations over the price, for three-hundred dollars. Trial Tr., pp. 222-23. During the negotiations with Polanco, Joy observed an unidentified man, with a gun visible in the waistband of his pants, standing in the entrance to the living room. Id. The man with the gun, who had led Joy into the living room for the sale, was positioned so as to block the entrance to the hallway. Id. When Joy and Polanco started to argue over the price and quantity of the cocaine, the man moved from the living-room entrance toward Joy and started "jumping around" Joy. Id. at 227. Joy testified at trial that as a result of the visible presence of the gun, he felt unable to refuse Polanco's demands concerning the cost and amount of cocaine to be sold. Id.
On August 1, 1989, DEA Agents executed a search warrant on apartment # 14, 209 West 108th Street, New York, New York. The agents recovered 3.9 grams of cocaine and a loaded .38 caliber Titan handgun, both in plain view on top of the living-room bar. Trial Tr., pp. 105-106. At the time of the search, Polanco was present in the living room, a few feet from the bar on which the items were discovered. Polanco was then arrested in the apartment.
Trial began on February 5, 1990. On February 13, 1990, the jury found Polanco guilty of conspiracy to possess with intent to distribute cocaine (Count One of the Indictment; 21 U.S.C. § 846), distribution of cocaine within one-thousand feet of a school (Counts Four and Five; 21 U.S.C. §§ 812, 814 (b)(1)(c), 841 (a)(1), 845 (a)), and use of a firearm during a drug transaction (Count Six; 18 U.S.C. § 924(c)). On June 18, 1990, this Court sentenced Polanco to concurrent 78-month terms on Counts One, Four, and Five and to the statutorily mandated consecutive five-year term on Count Six. A two-hundred-dollar special assessment and a six-year term of supervised release were also imposed. The Second Circuit affirmed the conviction and sentence on October 11, 1991.
On December 6, 1995, in Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), the Supreme Court clarified the term "use of a firearm" per 28 U.S.C. 924(c). In light of Bailey, Polanco has moved for reconsideration of his sentence, specifically the five years arising from his conviction on Count Six of the Indictment, which charged a violation of 18 U.S.C. § 924(c).
Section 924(c) provides in relevant part:
(1) Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . .
28 U.S.C. § 924(c). In Bailey, the Supreme Court explicitly rejected an interpretation of "use" that amounted to "mere possession of a firearm," 116 S. Ct. at 506 (citations omitted), as well as a definition that would encompass a concealed firearm intended for protection, id. at 508 -- a gun that was simply accessible and proximate to the person commiting a drug offense or to the drugs or drug proceeds, id. at 506. Stressing that "the inert presence of a firearm, without more, is not enough to trigger ['use,' per] Section 924(c)(1)," id. at 508, the Court held that for the statutory penalty to apply under the "use" prong, the "use" in question must amount to active employment, id. at 509. ("The Government must show that the defendant actively employed the firearm during and in relation to the predicate crime."). The examples cited in Bailey of "use" sufficient to sustain a conviction under Section 924(c) included "brandishing," "bartering," "striking with," "firing," and "attempting to fire" a firearm. Id. at 508.