                                  ___________

                                  No. 94-2263
                                  ___________

United States of America,              *
                                       *
     Plaintiff-Appellee,               *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of Nebraska
Fred A. Friend,                        *
                                       *
     Defendant-Appellant.              *
                                  ___________

                      Re-Submitted:   September 11, 1996

                         Filed:   November 29, 1996
                                  ___________

Before MAGILL, JOHN R. GIBSON, and LOKEN, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     Fred A. Friend was convicted of methamphetamine distribution and
conspiracy offenses and of violating 18 U.S.C. § 924(c) by using and
carrying a firearm equipped with a silencer during and in relation to that
drug trafficking conspiracy.   We affirmed the drug trafficking convictions,
reversed the conviction and thirty-year sentence for using a firearm with
a silencer, and remanded to the district court for entry of an amended
judgment convicting Friend of the lesser included § 924(c) offense of using
and carrying a firearm without a silencer.      United States v. Friend, 50
F.3d 548 (8th Cir. 1995).   The Supreme Court then decided Bailey v. United
States, 116 S. Ct. 501 (1995), which significantly narrowed the definition
of "use" under § 924(c).    That Court granted Friend's petition for a writ
of certiorari, vacated our judgment, and remanded for further consideration
in light of Bailey.    Friend v. United States, 116 S. Ct. 1538 (1996).   We
invited the parties to submit supplemental briefs, heard additional
argument, and now reverse the § 924(c) conviction.
     The initial issue on remand is whether Friend waived Bailey issues
at trial and in his initial appeal.       The Government argues that he did,
relying on United States v. McKinney, 79 F.3d 105 (8th Cir. 1996).        In
McKinney, a direct appeal submitted but not decided when Bailey was
published, we held that the issue was waived because defendant "did not
argue in his initial appeal brief that his conviction for using firearms
was in any way infirm."   79 F.3d at 109.    Here, by contrast, Friend moved
for acquittal at the close of the government's case in the district court
and argued on appeal that the evidence was insufficient to sustain the
§ 924(c) conviction.   Therefore, Bailey issues have been preserved.     See
United States v. Willis, 89 F.3d 1371, 1378 n.3 (8th Cir. 1996); United
States v. Webster, 84 F.3d 1056, 1065 n.6 (8th Cir. 1996).


     Turning to the merits, police found the handgun and silencer hidden
with a large quantity of drugs and cash in a secret safe at the home of
Gary Apker, the lead conspirator.         In its initial appeal brief, the
government argued, "The location of the gun and silencer with the stash of
illegal drugs and money was sufficient evidence from which a jury could
infer that the gun and silencer were intended for protection and use in
case of an emergency."      Applying familiar conspiracy principles, we
reversed the § 924(c) conviction because Apker's use of a silencer was not
reasonably foreseeable to conspirator Friend.     But we also concluded that
the government's § 924(c) storage theory was consistent with pre-Bailey
Eighth Circuit cases, the evidence was clear that Apker stored the firearm
with his stash of money and drugs, and this use of a firearm -- minus the
silencer -- was reasonably foreseeable to Friend.     Therefore, we directed
entry of an amended judgment convicting Friend of a lesser-included
§ 924(c) offense.   See 50 F.3d at 552-54.


     The Supreme Court rejected the government's storage theory in Bailey.
The Court held that a defendant cannot be convicted for use of a firearm
under § 924(c)(1) "merely for storing a weapon




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near drugs or drug proceeds. . . . If the gun is not disclosed or mentioned
by the offender, it is not actively employed, and it is not 'used.'"                  116
S. Ct. at 508.      The Court remanded so that we could reconsider our lesser-
included offense decision under Bailey.


        On remand, Friend argues that the trial evidence was insufficient to
convict him of any § 924(c) violation.            He asserts, and the government does
not    dispute,    that    the   trial   record    contains   no   evidence    that   any
conspirator ever actively employed this firearm, indeed, no evidence that
any firearm was ever actively used or carried during and in relation to
this conspiracy.          Thus, although Bailey was not a conspiracy case, and
proper application of its "actively employed" standard to drug conspiracies
may not      always be easy, here the government only proved that this
conspiracy stored a weapon with its hoard of drugs and cash.             Under Bailey,
that is plainly insufficient "use."


        We further note that Bailey concerned only the "use" prong of
§ 924(c) and that Friend was convicted of "using and carrying a firearm"
during and in relation to the drug conspiracy.                However, the government
does not suggest how the trial evidence could support a conviction under
either prong of § 924(c) after Bailey, and in particular does not urge us
to    remand for further examination of the "carry" issue.                     In these
circumstances, we conclude that the evidence was legally insufficient to
sustain the conviction of a lesser included § 924(c) offense.                 See United
States v. Thomas, 93 F.3d 479, 488 (8th Cir. 1996).


        A defendant who is acquitted of a § 924(c) violation may nonetheless
be subject to a two-level upward sentencing enhancement under U.S.S.G. §
2D1.1(b)(1).      See Bailey, 116 S. Ct. at 509.       To avoid double counting, the
Guidelines preclude application of this enhancement if the defendant is
convicted of violating § 924(c).         See U.S.S.G. § 2K2.4, comment. (backg'd).
Therefore, when a § 924(c) conviction is reversed on appeal, the district
court




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should be given the opportunity on remand to consider whether to impose a
§ 2D1.1(b)(1) enhancement.    See United States v. Rehkop, 96 F.3d 301, 306
(8th Cir. 1996); Thomas, 93 F.3d at 488.


     Accordingly, the judgment of the district court convicting Fred A.
Friend of Count IX of the indictment is reversed.    The sentence imposed on
Counts I through VIII is vacated, and the case is remanded for resentencing
on those Counts.    In all other respects, the judgment of the district court
is affirmed.


     A true copy.


           Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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