UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-6533

CLIFTON ALSTON, a/k/a Shaky,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CR-92-70, CA-95-456-1)

Submitted: June 3, 1997

Decided: August 27, 1997

Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge,
and PHILLIPS, Senior Circuit Judge.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

Keith E. Golden, GOLDEN & MEIZLISH CO., L.P.A., Columbus,
Ohio, for Appellant. Walter C. Holton, Jr., United States Attorney,
Benjamin H. White, Jr., Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Clifton Alston, a/k/a Shaky, appeals from the district court's order
adopting the magistrate judge's recommendation to deny relief on his
28 U.S.C.A. § 2255 (West 1994 & Supp. 1997) motion. For the rea-
sons stated below, we reverse his conviction under 21 U.S.C.A.
§ 924(c)(l) (West Supp. 1997) for using or carrying firearms during
and in relation to a drug trafficking crime on the grounds of insuffi-
ciency of the evidence.

In 1991, law enforcement officials began investigating Alston for
drug trafficking and money laundering. Federal agents arrested Alston
on April 2, 1992, and seized from his person over $1400. They then
executed a search warrant of his home, from which they seized
$14,195 in cash, numerous guns, and various quantities of crack
cocaine.

Pursuant to a plea agreement, Alston pled guilty to three counts of
a seven count indictment: possession with intent to distribute and dis-
tribution of more than fifty grams of crack, in violation of 21
U.S.C.A. §§ 841(a)(1), 841(b)(1)(A), 846 (West 1981 & Supp. 1997)
(Count One); money laundering, in violation of 18 U.S.C.A.
§ 1956(a)(1)(A)(i) (West Supp. 1997), 18 U.S.C. § 2 (1994) (Count
Two); and using or carrying firearms during and in relation to a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1) (West Supp.
1997) (Count Six). The district court held a Fed. R. Crim. P. 11 hear-
ing and accepted Alston's guilty plea to Counts One, Two, and Six,
after determining that Alston made a knowing and voluntary plea, that
there was a factual basis for the plea, and that Alston acknowledged
his guilt. Alston received concurrent ninety-six-month prison terms
on Counts One and Two, and a consecutive sixty-month prison term
on Count Six. This court affirmed his convictions on direct appeal.

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Alston filed a 28 U.S.C.A. § 2255 motion in June 1995 asserting
claims of ineffective assistance of counsel in the district court and on
appeal, and a claim of denial of due process during the Rule 11 hear-
ing. In January 1996, the district court adopted the magistrate judge's
recommendation to deny relief. Alston timely appealed. In April
1996, the district court issued a memorandum noting that in light of
the United States Supreme Court's December 1995 decision in Bailey
v. United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995)
(Nos. 94-7448, 94-7492), Alston might be entitled to relief from his
conviction under 18 U.S.C.A. § 924(c)(1) for using or carrying a fire-
arm during a drug trafficking crime. This court granted a certificate
of appealability on the issue of whether Bailey applies retroactively
to Alston's nonsuccessive habeas corpus petition. 1

Section 924(c)(1) provides in relevant part that"[w]hoever, during
and in relation to any . . . drug trafficking crime . . . , uses or carries
a firearm, shall, in addition to the punishment provided for such . . .
drug trafficking crime, be sentenced to imprisonment for five years."
18 U.S.C.A. § 924(c)(1). Alston contends that his conviction under
§ 924(c)(1) is not supported by the new, narrower interpretation of
"using" a firearm annunciated by the Supreme Court in Bailey. In
Bailey, the Supreme Court ruled that a conviction for "using" a fire-
arm under § 924(c)(1) "requires evidence sufficient to show an active
employment of the firearm by the defendant, a use that makes the fire-
arm an operative factor in relation to the predicate offense." Bailey,
___ U.S. at ___, 64 U.S.L.W. at 4041 (emphasis added). Previously,
the word "use" was interpreted to include constructive possession of
a firearm that facilitated a drug transaction in any way. See, e.g.,
United States v. Brockington, 849 F.2d 872, 876 (4th Cir. 1988).

Because the evidence does not support Alston's conviction for use
of a firearm under Bailey2 and because the Government concedes that
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1 Alston did not pursue his due process and ineffective assistance of
counsel claims on appeal and we do not address them.
2 Alston was not armed at the time of his arrest and therefore was not
"carrying" a firearm for purposes of § 924(c)(1). See United States v.
Mitchell, 104 F.3d 649, 653 (4th Cir. 1997)("carry" under § 924(c)(1)
"requires knowing possession and bearing, movement, conveyance, or
transportation of the firearm in some manner").

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Bailey is retroactive, we reverse Alston's conviction under
§ 924(c)(1) and remand for resentencing. We note that United States
Sentencing Commission, Guidelines Manual,§ 2D1.1(b)(1) (Nov.
1996), calls for a two-level increase when a defendant possessed a
dangerous weapon during the commission of a drug offense. At the
initial sentencing, Alston's firearm conviction precluded the govern-
ment from seeking to enhance his sentence under this provision for
possessing the firearms seized from his home. See United States v.
Clements, 86 F.3d 599, 601 (6th Cir. 1996) (noting that if defendant
is charged with and sentenced separately for using and carrying a fire-
arm in violation of 18 U.S.C. § 924(c), the two-level enhancement for
firearm possession pursuant to U.S.S.G. § 2D1.1(b)(1) is not permit-
ted so as to avoid double counting). The government now may wish
to seek an enhanced sentence under U.S.S.G. § 2D1.1(b)(1). See
United States v. Hillary, 106 F.3d 1170, 1171-73 (4th Cir. 1997).

REVERSED AND REMANDED

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