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UNITED STATES v. COOKE

October 29, 1997

UNITED STATES OF AMERICA
v.
KIM MAURICE COOKE, Defendant



The opinion of the court was delivered by: LAMBERTH

 BACKGROUND

 On February 21, 1994, police stopped Mr. Cooke and a co-defendant while driving in a black Chevrolet truck. Police had been searching for a black truck with a smashed rear window because witnesses had placed it outside a nightclub where shots had been fired. Mr. Cooke's vehicle matched the description witnesses gave police; therefore, the police initiated a stop. Police searched Mr. Cooke's vehicle and found 573.3 grams of marijuana behind the driver's seat. Police then arrested Mr. Cooke and conducted a more thorough search of the vehicle. During this search police found a gun in the console between the driver's and the passenger's seats.

 A grand jury indicted Mr. Cooke charging: 1) possession with intent to distribute marijuana, 21 U.S.C. § 841; 2) using and carrying a firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c); 3) possession of a firearm with an obliterated, removed, changed and altered serial number and aiding and abetting, 18 U.S.C. § 922(k); 4) carrying a pistol without a license in violation of the District of Columbia code; and 5) possession of an unregistered firearm, also in violation of the D.C. code. Mr. Cooke pled not guilty to these counts.

 On November 18, 1994, after conducting a suppression hearing, this Court denied Mr. Cooke's motion to suppress the drugs and gun seized from his vehicle. At this time, Mr. Cooke decided to accept the government's plea to count two of the indictment, and he informed the Court of his decision. Mr. Cooke's plea was accepted after the Court heard the evidence to be adduced at trial. The Court then explained to Mr. Cooke that he faced a mandatory sentence of five years under the statute. The Court did not mention any supervised release term at that time. On January 27, 1995, the Court sentenced Mr. Cooke to sixty months imprisonment and three years supervised release. Mr. Cooke now attacks his conviction on three grounds: 1) that in light of Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), his conviction under 18 U.S.C. § 924(c)(1) is invalid; 2) he received ineffective assistance of counsel during his motions hearing; and 3) he should be permitted to withdraw his guilty plea because he was not informed of the period of supervised release at the time of his plea.

 ANALYSIS

 1. The Bailey claim

 Mr. Cooke pled guilty to 18 U.S.C. § 924(c)(1) which states in relevant part: "Whoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall . . . be sentenced to imprisonment for five years." Mr. Cooke argues that there is no longer a sufficient legal basis for his plea. He contends that the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1996), demands that his conviction be vacated. In Bailey, the Supreme Court held that a conviction under the "use" prong of § 924(c)(1) requires more than mere possession of a weapon by an individual committing a drug offense. 116 S. Ct. at 506. The Supreme Court's decision concentrated on the "use" prong of § 924(c)(1), stating that the active-employment understanding of "use" includes "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at 508. The Supreme Court expressly reserved ruling on what constitutes "carrying" a firearm under § 924(c)(1), and remanded the case to the circuit court to make that determination. Id. at 509.

 Similarly, in United States v. Morris, 298 U.S. App. D.C. 142, 977 F.2d 617 (D.C. Cir. 1992), police searched defendant's apartment and found two guns under the couch where defendant was sitting, one gun in a nightstand, and drugs in an air duct in the bedroom. The court relied on the "use" prong of § 924(c)(1) to uphold the conviction but determined that the evidence also supported a "carrying" charge for the guns found under the couch since they were within reach of the defendant. 977 F.2d at 620-621, n. 1.

 Finally, in United States v. Joseph, 282 U.S. App. D.C. 102, 892 F.2d 118 (D.C. Cir. 1989), the defendant was convicted under § 924(c)(1) when he had constructive possession over a firearm being carried in a duffel bag held by his companion. The court found that the defendant was never more than an arm's length from the firearm so that he had "a present ability to exercise dominion and control over" the weapon. 892 F.2d at 126 (quoting Evans, 888 F.2d 891 at 895). The case law in this circuit, then, clearly recognizes that under the statute an individual "carries" a firearm when it is within an accessible distance from that individual.

 Although this circuit has not addressed the definition of "carry" since the Supreme Court's decision in Bailey, other circuits have addressed the issue and continue to define "carry" broadly. Most circuits agree that a weapon must be accessible to the defendant in order to meet the definition of "carry." In United States v. Giraldo, 80 F.3d 667 (2nd Cir. 1996), a firearm located in a secret compartment in the console of a vehicle was "carried" as to the driver of the vehicle. Id. at 677. In United States v. Douglas, 82 F.3d 1315 (5th Cir. 1996), the Fifth Circuit determined that a firearm located within reach under the driver's seat was carried. Id. at 1328. In United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996) the court held that a firearm which is immediately available for use, meaning on the person or within reach is carried under the statute. The court considered a handgun protruding from the driver's side console a "carry" under that standard. Id. at 623. Additionally, the First, Fourth, Seventh, and Tenth Circuits do not even require that the firearm be accessible in order to be "carried" in a vehicle. See United States v. Cleveland, 106 F.3d 1056, 1066 (1st Cir. 1997) (holding that guns located in trunk of car were "carried" under statute); United States v. Mitchell, 104 F.3d 649, 652-654 (4th Cir. 1997) (finding that firearm need not be accessible to be "carried"); United States v. Molina, 102 F.3d 928 (7th Cir. 1996) (holding that gun found in unreachable secret compartment in vehicle was "carried"); United States v. Miller, 84 F.3d 1244, 1256-61 (10th Cir. 1996) (determining that gun located in rear of van unaccessible to driver still "carried" under § 924(c)(1)). According to this circuit's case law which preceded Bailey and the case law from other circuits subsequent to Bailey, little more than mere possession satisfies the "carry" prong of § 924(c)(1).

 In light of the relevant case law, petitioner's reliance on Bailey offers no support for his claim. This Court need not find that Mr. Cooke "used" the weapon to be in accordance with the Bailey decision. Since § 924(c)(1) is written in the disjunctive, Mr. Cooke's conviction can be upheld if he either "used" or "carried" the weapon. While Mr. Cooke's actions do not rise to the level of "use" of a firearm, he clearly "carried" it in his vehicle within the meaning of the statute and the prevailing case law. The vehicle was owned by Mr. Cooke, and he had constructive possession over everything within it. Police found the drugs behind the driver's seat and found the firearm in the console between the driver's (Mr. Cooke's) seat and the passenger's seat. Mr. Cooke had easy access to the console; therefore, he had a "present ability to exercise dominion and control over" the weapon. United ...


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