actions took place "during and in relation to ... the drug trafficking crime." 116 S. Ct. at 505. Accordingly, Lattimore's conviction for using a firearm in violation of § 924(c)(1) must be vacated.
B) 'Carrying' A Firearm
Section 924(c)(1) also makes it an offense to 'carry' a firearm during and in relation to a drug trafficking crime. While the meaning of 'carry' was not addressed in Bailey, it has been discussed in several subsequent Second Circuit decisions. In this case, however, I find that it would be inappropriate for me to consider whether the evidence supports a 'carrying' conviction. Although Lattimore's indictment states that he "did knowingly, willfully and unlawfully use and carry a firearm," the Government did not prosecute its case against Lattimore on any theory except the 'use' theory. The 'carry' prong dropped out of the case. The jury was charged only on 'use' of a firearm; the jury made a finding only on 'use' not 'carrying'; the Verdict Form completed by the jury found that Lattimore "did knowingly use a firearm...."; and the Judgment states that Lattimore was "adjudged guilty" of "Use of a Firearm During and in Relation to a Drug Trafficking Crime". No objections were raised to any of this language. Accordingly, I find that the Government failed to prosecute the 'carry' prong of Section 924(c)(1). Thus, it would be improper for me now to consider whether there was sufficient evidence to support a conviction for 'carrying'.
Even if I were to do so, however, the evidence against Lattimore appears insufficient to support a conviction for 'carrying' under Section 924(c). Thus, I do not believe that the evidence supports either the 'use' or 'carrying' of the firearm and therefore this count must be dismissed. See Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991).
Prior to Bailey, courts generally had agreed that 'carrying' was to be interpreted narrowly, while 'use' was interpreted more broadly. Canady, 920 F. Supp. at 406 (citations omitted). Since Bailey, 'carrying' remains strictly construed. In Santos, supra, the Court of Appeals noted that neither the legislative history of Section 924(c)(1) nor the case law in the Circuit suggests that the term 'carry' should be construed as having any meaning beyond its literal meaning. Id. at 46-47 (quoting United States v. Feliz-Cordero, 859 F.2d 250, 253 (2d Cir. 1988)). Thus, while Bailey suggested that a defendant may be convicted of 'carrying' a firearm if he has "put a gun into place to protect drugs or to embolden himself" -- 116 S. Ct. at 507 -- Second Circuit law requires "'at least a showing that the gun was within reach during the commission of the drug offense' in order to sustain a conviction for 'carrying' a firearm." Santos, 84 F.3d at 47 (quoting Feliz-Cordero, 859 F.2d at 253); see also United States v. Pimentel, 83 F.3d 55, 59 (2d Cir. 1996)(a gun may be 'carried' within the meaning of Section 924(c) when it is "concealed in a location that is immediately accessible to a perpetrator of a drug offense"); Canady, 920 F. Supp. at 407 ("a defendant may be found to have been carrying a weapon even if the weapon was not in his hands or on his person, if the weapon was within his immediate reach) (emphasis added).
Here, the gun was not on Lattimore's person nor within his reach. It was in an entirely different room, in a dresser drawer. Thus, there is no evidence to support a claim that Lattimore 'carried' the gun for purposes of Section 924(c).
Arthur Lattimore's motion pursuant to 28 U.S.C. § 2255 is granted.
The entire original sentence and judgment, entered on October 12, 1995, is vacated in all respects and the case will be scheduled for resentencing on count one only. See United States v. Bermudez, 82 F.3d 548, 550 (2d Cir. 1996); see also Reyes v. United States, 944 F. Supp. 260, 1996 U.S. Dist. LEXIS 15890, 1996 WL 617326 (S.D.N.Y. 1996) (96-CIV-2096 CSH); Pedretti v. United States, 1996 U.S. Dist. LEXIS 6315, 1996 WL 340769 (N.D.N.Y. April 26, 1996) (96-CV-0146). Count two of the indictment is dismissed, with prejudice. The United States Marshal is directed to lodge a detainer against Lattimore and he is to be detained pending resentencing pursuant to 18 U.S.C. § 3143.
The Probation Office is directed to prepare an amended Presentence Investigation Report as soon as possible. Thereafter, the parties are directed to meet with the probation officer to resolve any disputes and to submit new "Statements with Respect to Sentencing Factors."
Resentencing is scheduled for December 18, 1996, at 10 a.m.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
November 14, 1996.