United States v. Muscarello

Citations: 106 F.3d 636; 1997 WL 63706Docket: 96-30591

Court: Court of Appeals for the Fifth Circuit; February 14, 1997; Federal Appellate Court

Original Court Document: View Document

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The United States Court of Appeals for the Fifth Circuit is addressing an appeal by the government against the district court’s dismissal of Count Three in a multi-count indictment involving Frank J. Muscarello. Muscarello had pled guilty to drug charges and to using and carrying a firearm in relation to those offenses, violating 18 U.S.C. § 924(c)(1). The district court dismissed Count Three based on a presentence report (PSR), despite Muscarello's guilty plea and conviction. 

The dismissal followed the Supreme Court's decision in Bailey v. United States, which narrowed the interpretation of "use" under § 924(c), leading Muscarello to seek dismissal of the firearms count. The district court, after a hearing, dismissed the count, rejecting the previously accepted factual basis for Muscarello's conviction. Instead, it relied on Muscarello's statements in the PSR, where he acknowledged possession of the firearm but claimed it was not related to drug trafficking, asserting it was for his job as a bailiff.

The court concluded that Muscarello did not knowingly possess the firearm in relation to the drug crime, suggesting instead that it was for job-related reasons. The government’s motion for reconsideration was denied despite the district court recognizing Muscarello’s prior admissions during his guilty plea. The appellate court reversed the district court’s dismissal and remanded the case for further proceedings.

The court emphasized that Muscarello carried a firearm in his vehicle's glove compartment, which was not in relation to a drug-trafficking crime, based on an assessment of the presentence report (PSR). The government appealed, arguing that the evidence met the "carrying" requirement of 18 U.S.C. § 924(c), despite conceding that the "use" requirement was not satisfied post-Bailey. The court concurred, asserting that Bailey did not change the existing legal framework regarding the "carrying" aspect of § 924(c), particularly when firearms are possessed in vehicles during drug trafficking activities. 

The court identified two legal errors made by the district court: first, it wrongly dismissed the factual basis agreed upon by Muscarello and his counsel as merely a pre-Bailey consideration, which was irrelevant for the carrying aspect. Second, it improperly relied on Muscarello's self-serving statement about his intent in possessing the firearm, undermining the formal plea agreement. The Supreme Court's Bailey ruling did not invalidate prior jurisprudence concerning the carrying of firearms in vehicles during drug trafficking, and the definition of "carrying" in this context differs from the conventional understanding of carrying on one’s person. Thus, the locked glove compartment does not preclude a conviction, although possession alone does not automatically establish the firearm was carried in relation to the drug offense.

A firearm contained within a vehicle can be considered carried "during" a drug-trafficking offense under 924(c), regardless of whether it is specifically related to the offense, if the defendant knowingly possesses the firearm and uses the vehicle in committing the crime. The court determined that it was irrelevant that the government established the factual basis after the Bailey decision or that Muscarello had agreed to this factual basis before Bailey. Additionally, Muscarello's subjective intention to possess the firearm for his job as a bailiff does not negate the plea agreement that included the "in relation to" element. The district court erred by ignoring the plea's factual basis and relying on the presentence report regarding Muscarello’s intentions, which led to the wrongful dismissal of Count Three of the indictment. The appellate court reversed this dismissal, reinstated Count Three and Muscarello's conviction, vacated the previous sentence for not considering the firearms charge, and remanded the case for resentencing. The court emphasized that the definition of "carrying" under 924(c) differs significantly between vehicle and non-vehicle contexts, and such distinctions must be carefully examined in future cases.