Robert Mercado v . USA CV-97-123-B 07/17/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert J. Mercado

v. Civil N o . 97-123-B

United States of America

MEMORANDUM AND ORDER

Robert J. Mercado pled guilty to conspiracy to distribute a controlled substance, use of a firearm during a drug trafficking crime, and conspiracy to commit money laundering on November 2 0 , 1992. He was sentenced in this court on July 7 , 1993.1 In March 1997, Mercado filed a motion to vacate the firearms count under

(West Supp. 1997), arguing that the Supreme Court’s decision in Bailey v . United States, 116 S . C t . 501 (1995) affects the legal sufficiency of that count. I denied Mercado’s motion on April 1 7 , 1997. Mercado now seeks a certificate of appealability2 authorizing him to appeal my order

1 Mercado’s sentence was reduced on May 8 , 1996 upon motion of the government for providing substantial assistance to the United States. 2 Recent changes in the law require prisoners seeking relief under 28 U.S.C.A § 2255 to obtain a certificate of appealability. See Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L . N o . 104-132 (1996). A certificate of appealability may issue only if the petitioner has made a substantial showing of the denial of a constitutional right, and the certificate must indicate which specific issue or issues satisfy the standard.

(c)(2) and (c)(3) (West Supp. 1997). denying his section 2255 claim. Assuming without deciding that I have the authority to issue a certificate of appealability in the appropriate case,3 I nevertheless decline to issue the certificate because Mercado has failed to make a substantial showing that his constitutional rights have been denied.4

DISCUSSION5

On August 5 , 1992, Mercado and some associates visited Mark

Heino in New Hampshire to collect a drug debt. As Mercado

approached Heino’s car, Heino drew a gun and shot Mercado.

Mercado then retreated approximately 100 feet to his van,

retrieved a loaded firearm he had stored in the van, and fired

back at Heino. Citing Bailey, Mercado argues that his plea to

the section 924(c) count should be vacated because: (1) he did

3 See Hunter v . United States,

(11th Cir. 1996)(en banc),cert. denied, 117 S . C t . 1695 (1997); Houchin v . Zavaras,

(10th Cir. 1997); Lyons v . Ohio Adult Parole Auth.,

(6th C i r . ) , cert. denied, 117 S . C t . 1724 (1997). 4 I assume without deciding that Mercado can meet the certificate of appealability standard by demonstrating that Bailey provides a basis to vacate his conviction. At least one court has held that because Bailey involves statutory interpretation, a denial of a constitutional right cannot be at issue. See Hohn v . United States,

9 2 , 893 (8th Cir. 1996), petition for cert. filed,(U.S. May 1 2 , 1997) (No. 96- 8986). 5 Unless otherwise noted, the facts are either undisputed or are taken from Mercado’s petition. not use a firearm during or in relation to a drug trafficking

crime; and (2) he did not use the firearm within the meaning of

section 924(c) because he was acting in self-defense. As I

describe below, I reject both of Mercado’s arguments. Further,

even if Mercado did not use the firearm in relation to a drug

crime, his conviction is valid because the undisputed evidence

establishes that he carried the firearm in relation to a drug

crime. Accordingly, I decline to issue the certificate of

appealability. A. “During or in relation to” requirement of section 924(c)(1)

Mercado first claims that the indictment fails because no

one, including Mercado, was in possession of any marijuana on

August 5 , 1992. Mercado admits he was trying to collect a drug

debt from Heino on that date. Nevertheless, he argues that “although the money owed may well have been for drugs,” his use

of the firearm was not during or in relation to a drug

trafficking crime because the [drug] crime itself had already

been committed.” I reject this argument. In this case, the

underlying drug crime was conspiracy to distribute and possess

with the intent to distribute marijuana and by Mercado’s own

admission, his effort to collect the drug debt from Heino was an

overt act in furtherance of that conspiracy. Therefore,

-3- Mercado’s conduct was during and in relation to the underlying

crime as required by section 924(c)(1).

B. “Use” of a gun under section 924(c)(1)

Mercado next argues that the government cannot demonstrate

that Mercado “used” a gun during the crime. The relevant statute

provides in pertinent part that, “[w]hoever, during and in

relation to any crime of violence or drug trafficking crime

(including a crime of violence or drug trafficking crime which

provides for an enhanced punishment if committed by the use of a

deadly or dangerous weapon or device) . . . uses or carries a

firearm, shall . . . be sentenced to imprisonment . . . .”

(c)(1) (West Supp. 1997) (emphasis added).

In Bailey, the Supreme Court clarified the meaning of “use”

under section 924(c)(1) and held that the use of a firearm

requires evidence sufficient to show an active employment of a

firearm by the defendant. Bailey, 116 S . C t . at 505; see also

United States v . Joseph,

4 , 36 (1st Cir. 1997)(vacating

a section 924(c)(1) conviction post-Bailey). By way of example,

the court indicated that the “active-employment understanding of

<use’ certainly includes brandishing, displaying, bartering,

striking with, and most obviously, firing or attempting to fire,

a firearm.” Id. at 508. Mercado concedes in his petition that

-4- he returned to his vehicle to retrieve a gun and that he used the

gun to protect himself. In addition, Mercado attaches in his

petition a portion of the PSI’s findings of fact, which indicates

that Mercado, upon reaching the van, grabbed a firearm and began

returning fire. Mercado argues that he is not guilty of a

Section 924(c) violation because he used the weapon only in self-

defense when he retreated to the van after being shot by Heino.

However, as a matter of law, “self-defense is irrelevant to a

section 924(c) violation.” See United States v . Sloley,

(4th C i r . ) , cert. denied,

(1994); United

States v . Poindexter,

5 4 , 360 (6th Cir. 1991); United

States v . Johnson,

(10th Cir. 1992). There-

fore, Mercado plainly “used” a firearm in the sense in which that

term is used in section 924(c).

C. The “carry” requirement of section 924(c)(1)

Even if Mercado could somehow prevail on his “use” argument,

it is clear that he carried the gun under section 924(c)(1). The

statute is written in the disjunctive, which means either using

or carrying can separately comprise the basis of the charge.

Bailey affected only the construction of 924(c)(1) regarding the

use of a firearm. Id. at 509 (“The ‘carry’ prong of 924(c)(1),

for example, brings some offenders who would not satisfy the

-5- ‘use’ prong within the reach of the statute.”); see also United

States v . Orozco,

(5th Cir. 1996)(rejecting

section 2255 petition because “the ‘use’ question aside, the

conviction stands under the ‘carry’ prong.”). A gun may be

“carried in a vehicle for the purposes of 924(c)(1) without

necessarily being immediately accessible to the defendant while

it is being transported.” United States v . Cleveland,

(1st Cir. 1997), petition for cert. filed, (U.S. April

3 0 , 1997) (No. 96-8837); see also United States v . Objio-Sarraff,

2 1 , 421 (1st Cir. 1997)(broad use of “carry” in section

924(c)(1)). Mercado admits that he brought the firearm with him

when he visited Heino to collect the debt, and his assertion that

he was not carrying the weapon when he originally approached

Heino’s car is irrelevant because the weapon was clearly readily

available to him in the van.

CONCLUSION

The undisputed facts compel the conclusion that Mercado

carried and used a firearm during and in relation to a drug

trafficking crime. Therefore, I deny Mercado’s application for a

certificate of appealability.

SO ORDERED.

-6- Paul Barbadoro United States District Judge

July 1 7 , 1997

cc: Robert J. Mercado, pro se Peter E . Papps, Esq.

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