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holding that prosecutor's explanations for striking two jurors "rel[ied] exclusively on assumptions based on race"
Summary of this case from Porter v. Coyne-FagueOpinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Submitted July 14, 1999.
Argued Sept. 11, 1997.
Appeal from the United States District Court for the Western District of Washington, William L. Dwyer, District Judge, Presiding.
Before SCHROEDER and BEEZER, Circuit Judges, and SCHWARZER, District Judge.
Honorable William W. Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Jomo K. Richardson was indicted in 1992 on several drug and weapons charges based on the discovery of cocaine and a sawed-off shotgun in the trunk of his car. Under a plea agreement, he pled guilty to both using and carrying a firearm in relation to a drug trafficking crime over the three-day period between September 11 and 13, 1992. See 18 U.S.C. § 924(c)(1). The government dismissed the other charges.
After the Supreme Court held in Bailey v. United States, 516 U.S. 137 (1995), that "use" of a gun under § 924(c)(1) requires "active employment," Richardson filed a motion under 28 U.S.C. § 2255 to vacate his sentence. The district court granted the motion but reinstated the other charges on the theory that a mutual mistake of law voided the plea agreement. The government appealed the dismissal of the § 924(c)(1) conviction; Richardson cross-appealed the reinstatement of the other charges. We deferred submission of the case pending the decision of the en banc court in United States v. Barron, 172 F.3d 1153 (9th Cir.1999), a case involving the reinstatement of dismissed charges following the vacation of a conviction under Bailey. We ordered supplemental briefing on the effect of Barron and Muscarello v. United States, 118 S.Ct. 1911 (1998), and have considered the parties' arguments.
In Muscarello, the Supreme Court expanded the meaning of "carry," holding that the phrase "carries a firearm ... in relation to ... a drug trafficking crime" in 18 U.S.C. § 924(c)(1) is not "limited to the carrying of firearms on the person ... [but] also applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies." Id. at 1913-14 (internal quotation marks omitted). It can be reasonably inferred from the record that Richardson conveyed the shotgun in his Volkswagen, in which it was found at the time of his arrest, between 11 and 13, 1992, the offense period to which he pled. Moreover, even apart from Muscarello, the Polaroid picture of Richardson holding the shotgun indicates that he carried the gun on his person at some point during the three-day period. We therefore REVERSE the district court's vacation of the guilty plea, and order that the judgment of conviction for the violation of 18 U.S.C. § 924(c)(1) be reinstated.