MOTION FOR CORRECTION OF SENTENCE. IF REMANDED,

AND MEMORANDUM OF LAW

Defendant/Appellant*, by and through his undersigned attorney, respectfully requests that this Honorable Court modify, correct and reduce his sentence pursuant to Fed.R.Crim.P. 35(a), and in accord with the United States Supreme Court decision in Bailey v. United States, 1995 WL 712269 (U.S.). In support of this Motion, * submits:

1. That he was convicted at the trial of this cause of a violation of 18 U.S.C. § 924(c), that is, the use of a firearm during and in relation to a drug trafficking crime. Based on the conviction, the Court sentenced * to a consecutive five year term of imprisonment in accord with the statute.

2. That at trial the evidence was that the Defendant was located in the living room of 1004 18th Street during the entire time that the Orlando police officers were present and until he was arrested and taken from the residence by the officers. At no time did he enter the bedroom area of the residence. The firearm which formed the basis for the conviction in this case was found in a closed dresser drawer in the bedroom of the house. At no time was * seen in possession of the weapon nor did he ever refer to it. At trial, the Defendant/Appellant specifically requested a judgment of acquittal on the § 924(c) count on the basis that Vincent Harris was never in possession of the firearm, was never in the same room with it, and that the gun was not used in any way to facilitate a drug crime (see transcript at 361). The Court denied the motion, which was renewed at the close of all evidence in the cause (transcript at 444).

3. That on December 6, 1995, the Supreme Court ruled on the § 924(c) issue in Bailey v. United States, 1995 WL 712269 (U.S.). In its decision, the Court clearly limited § 924 (c) applicability to those cases where a firearm is brandished or displayed, is used as barter or is used to strike or fire at another person. The only additional use considered proper by the Court was for referring to a gun within an individual's possession. Further, the Court stated that evidence of the proximity and accessibility of the firearm to drugs or drug proceeds is not sufficient to support a conviction under the section. In the companion case to Bailey, Robinson v. United States, the Court struck down the § 924 (c) conviction where the facts showed that Robinson retrieved drugs from a bedroom in a one bedroom apartment where the police found more crack cocaine and a firearm during their search. The Court said that only "active employment" of a firearm is sufficient for a conviction. In *' case there was no use of the gun or reference made to it. He never possessed it and was never seen in the same room with it. Under the Bailey decision, the conviction must fall. It should also be noted that the jury verdict recognized that * never possessed the firearm in that he was acquitted of the possession of a firearm by a convicted felon charge. A jury question was framed in such a way as to make it clear that they convicted on the § 924(c) count only because of the proximity of the firearm to the Defendant.

4. That given the invalidity of the conviction in this cause, the five year consecutive mandatory sentence should be set aside.

MEMORANDUM OF LAW

After a notice of appeal had been filed, the proper method for filing a motion to reduce sentence is to file said motion in the district court and to request the district court certify that the motion should be granted. Once said certification is made by the district court, the appellate court will have jurisdiction to entertain a motion to remand. United States v. Ellsworth, 814 F.2d 613 (llth Cir. 1987).

Under Fed.R.Crim.P. 35(a), the district court may modify, correct and reduce a sentence once it has been imposed upon remand where such sentence was imposed in violation of law. Further, a court may consider an issue where a supervening decision has changed the law in a Defendant/Appellant's favor and the law was so settled at the time of trial that any attempt to challenge it would have appeared pointless. United States v. Washington, 12 F.3d 1128 (D.C.Cir. 1994); accord Smith v. Estelle, 602 F.2d 694, 708 n. 19 (5th Cir. 1979), affirmed 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). This occurred in the instant case as outlined above. although * did object to then current Eleventh Circuit law which held that mere proximity to a firearm, even one hidden, was sufficient to sustain a § 924(c) conviction. Since the Supreme Court has now decided this issue in Mr. *' favor, he respectfully requests that this Honorable Court enter an order certifying that this motion should be granted so that he can request the Eleventh Circuit Court of Appeals to temporarily relinquish jurisdiction in appeal number 95-2729 and remand the case for resentencing.

A reduction of Mr. *' sentence is in order, and the consecutive five year prison term based on the invalid § 924(c) conviction should be removed.

WHEREFORE, the Defendant/Appellant, *, respectfully requests that the Court modify, correct and reduce his sentence of imprisonment based on Bailey v. United States, Id.

RESPECTFULLY SUBMITTED this ___ day of December, 1995.

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