MOTION TO VACATE SENTENCE UNDER 28 USC§ 2255

* *, through counsel, * R. * for the Federal Defenders of Eastern Washington and Idaho, moves the court to vacate the sentence under 28 U.S.C. § 2255 on the grounds that the conviction for using or carrying a firearm during and in relation to a drug trafficking crime was obtained ln violation of the United states Constitution and the laws of the United States; thus, Mr. * is currently serving a sentence based upon said invalid conviction. This motion is based upon the United States Constitution, the Memorandum in Support of Motion Under 28 U.S.C. 2255, the court's record and file herein.

MEMORANDUM IN SUPPORT OF MOTION

UNDER 28 U.S.C. § 2255

* *, through counsel, * R. * for the Federal Defenders of Eastern Washington and Idaho, submit the following Memorandum in Support of Motion under 28 U.S.C. § 2255:

STATEMENT OF FACTS

Basic Proceedings and Sentence

On February 11, 1992, a 3 count indictment was filed against Mr. *. Counts One and Two charged * with controlled substance violations under Title 21 of the United States Code. Count Three charged him with using or carrying a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1). * was convicted on all three counts at a second trial commencing October 5, 1993 . On April 9, 1994, Mr * was sentenced to 66 months imprisonment and three years supervised release. 6 months were imposed for his controlled substance convictions for Counts One and Two. 60 months of Mr. *'s incarceration resulted from his conviction under 18 U.S.C. § 924(c)(1). * is currently serving his sentence at Sheridan, Oregon. His projected release date is January 17, 1998. Thus, Mr. * is serving the remainder of his .sentence only upon his conviction under § 924 (c).

Trial Facts

These facts are taken from the transcripts of trial of October 5, 1995. Those transcripts are incorporated by reference herein. The facts essential to this motion are as follows:

On August 16, 1991, two search warrants were executed at properties owned by Mr. *. Officers from the Walla Walla Police Department executed the first search warrant at *'s home at 511 North Sixth Street in Walla Walla at 6:55 a.m. The second search warrant was executed at 8:50 a.m. that same morning by the Oregon state Police at *'s body shop in Milton-Freewater, Oregon.

* was not home when the search warrant was executed at his residence in Walla Walla. The police seized several items during the search of *'s residence. In the bedroom they obtained $4,150 in cash and two firearms. The two firearms are the firearms alleged in Count Three of the indictment - a .45 caliber Smith and Wesson pistol and a .9mm Smith and Wesson. No ammunition for the .45 was located during the search. A clip containing 8 rounds for the .9mm was located above the pistol. Neither firearm was loaded. Mr. * was not carrying or actively employing the firearms. The government charged using or carrying the firearms during and in relation to the crime of Possession with Intent to Distribute Cocaine based upon the seizure of a baggie of cocaine located in the basement of the residence. No firearms were located at the business in Milton-Freewater .

AUTHORITY

28 U.S.C. § 2255 permits a prisoner serving a federal sentence to move the court for release from the sentence if the sentence was imposed in violation of the Constitution of the laws of the United States. Upon such motion the court may vacate, Ret. aside or correct the sentence. Here, Mr. * is requesting that the sentence be vacated on count Three because the conviction that count was obtained in violation of the Constitution and the laws of the United States.

Most recently, the United States Supreme Court held that a conviction for "use" of a firearm during and in relation to a drug crime cannot be sustained unless that there is evidence that the defendant actively employed the firearm in some manner during and in relation to the drug crime. Bailey v. United States, 116 S. Ct. 501, (1995). In this case there was no evidence that * actively employed the firearms alleged in Count Three during the crime of possession with intent to distribute cocaine. The jury, however, was instructed that they could convict Mr. * for "use" of a firearm. Further, the jury was instructed that it was sufficient if it found only that the defendant had possession or control of a firearm under circumstances that showed that the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge ever occurred. Jury Instruction 13. The jury was not instructed that it must find the firearm was actively employed before it could sustain a conviction for using a firearm during and in relation to a drug crime under § 924(c)(1). Thus, the conviction was obtained in violation of the law of the United States and contrary to the Constitution.

A conviction must be vacated if it is based upon "an act that the law does not make criminal. There can be no room for doubt that such a circumstance 'inherently results in a complete miscarriage of Justice' and 'present[s] exceptional circumstances' that justify collateral relief under § 2255 Davis v. United States, U.S. 333, 346-47 (1574) (quoting Hi11 v. United States, 368 U.S. 424, 428 (1962)). Here, the law does not make criminal the conduct for which Mr. * was convicted.

CONCLUSION

Based upon the foregoing, it is requested that the court grant a hearing upon this motion under § 2255 and further vacate the sentence imposed in this matter on the conviction under § 924 (c)(1).

DATED this day of December, 1995.

Respectfully yours,

ORDER

Pending before the Court is defendant's Motion to Appoint Counsel for 2255 Relief and Motion to Vacate Sentence Under 28 U. S. C. § 2255. * * of the Federal Defenders of Eastern Washington and Idaho filed both motions for the Defendant. The United States is represented by Gregory Shogren, Assistant United States Attorney. The Government does not oppose the Defendant's motion to vacate his sentence.

On February 11, 1992, a three count indictment was filed against the Defendant. Count 3 of that Indictment charged him with Using or Carrying a Firearm During and in Relation to a Drug Trafficking Crime under 18 U.S.C, S 924(c)(1). The Defendant was convicted on all three counts at a second trial, commencing October 5, 1993. On April 9', 1994, the Defendant was sentenced to 66 months imprisonment and three years supervised release. Sixty months of the defendant's incarceration resulted from his conviction under 18 U.S.C. § 924(c)(1). The Defendant is currently incarcerated at Sheridan, Oregon, and his projected release date is January 17, 1998. Consequently, the defendant is serving the remainder of his sentence only upon his conviction under § 924(c).

The United States Supreme Court has recently changed the law with regard to the use of a firearm during the commission of a drug felony. Bailey v. United States, 1995 WL 712269 __U.S.__. The Supreme Court now, requires that the government prove that the defendant actively employed a firearm under the "use" prong of § 924(c)(1). In the instant case, the defendant did not actively employ the firearm as required by Bailey. Accordingly,

IT IS ORDERED that:

1. Defendant's Motion to Vacate Sentence Order 28 U.S.C. § 2255, Ct. Rec. 92, is GRANTED. Consequently, the Defendant is entitled to be IMMEDIATELY RELEASED FROM CUSTODY, and the Bureau of Prisons is requested to RELEASE the Defendant.

2. Defendant's Motion to Appoint Counsel for 2255 Relief , Ct. Rec. 94, is

GRANTED.

The Clerk is directed to file this Order, provide copies to counsel, the United States Probation Office and a certified copy to the Bureau of Prisons.

DATED this day of January, 1996.

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