                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                                No. 98-20667


                        UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                      v.

                           JAMES OSCAR COOPER,

                                                      Defendant-Appellant.


          Appeal from the United States District Court for the
                        Southern District of Texas
                               (H-97-CV-788)

                              January 9, 2001

Before GOODWIN,* GARWOOD, and JONES, Circuit Judges.


EDITH H. JONES, Circuit Judge:**

              Appellant James Cooper challenges the partial denial of

his § 2255 motion, which attacked his conviction for using or

carrying a firearm in connection with a drug crime under 18 U.S.C.

§ 924(c)(1).      He argues that the presence of nearby shotguns was

insufficient to establish that he used or carried the shotguns.             We

agree, and we vacate this conviction, but the case must be remanded

for resentencing.


      *
       Circuit Judge of Ninth Circuit, sitting by designation.
      **
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                       FACTS

            Cooper owned a heavily fortified private club in Houston.

He used the club as a base for drug trafficking operations.             Police

officers found large quantities of drugs and weapons there during

searches between March and October 1990.

            The events relevant to this appeal took place in May

1990.     Police officers conducting a “check” at the club heard an

argument over money in an upstairs office.          They entered the office

and observed Cooper sitting on a couch holding a bag with two grams

of crack cocaine.        Another man stood in the room with a pistol in

his waistband.     Two shotguns, one of them loaded, lay against the

wall in an open closet, approximately six to eight feet away from

Cooper.    Cooper informed the officers that he owned the shotguns.

            In   1991,    a    jury   convicted   Cooper   of   numerous   drug

trafficking crimes.           One of these convictions was for using or

carrying the pistol and shotguns during and in relation to a drug

trafficking crime under 18 U.S.C. § 924(c)(1).                  Cooper filed a

successive 28 U.S.C. § 2255 motion to vacate this conviction for

insufficient evidence in light of Bailey v. United States, 516 U.S.

137, 143 (1995) (holding that “use” under the statute means more

than mere possession). The magistrate judge held that the evidence

was insufficient to show that Cooper used or carried the pistol.

It denied the motion, however, because it found sufficient evidence

to show that Cooper carried the shotguns.             Cooper appealed, and


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this court granted a certificate of appealability to consider

whether the evidence was sufficient to convict him of this count.

                        STANDARD OF REVIEW

          We review the district court’s factual findings on a

§ 2255 petition for clear error.       We review its conclusions of law

de novo, applying the same standards as the district court.              See

United States v. Wainuskis, 138 F.3d 183, 185 (5th Cir.1998).

          The   government   argues    that   the   abuse   of    discretion

standard applies, citing United States v. Cullum, 47 F.3d 763, 764

(5th Cir.1995).    In Cullum, the district court denied a § 2255

motion for abuse of § 2255 proceedings.       The district court in this

case did not deny this motion for abuse of § 2255, so Cullum does

not apply.

                              DISCUSSION

          Cooper argues that the evidence was insufficient to

convict him under § 924(c)(1).         At the time of his conviction,

§ 924(c)(1) provided:

          Whoever, during and in relation to any crime
          of violence or drug trafficking crime . . .
          uses or carries a firearm, shall, in addition
          to the punishment provided for such crime . .
          . be sentenced to imprisonment for five years.
          . . .”

Historical and Statutory Notes, 18 U.S.C.A. § 924 (West 2000) at

424 (emphasis added).    The government does not dispute that in

light of Bailey, Cooper did not “use” the firearms.              At issue is



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whether the evidence was sufficient for a jury to conclude that he

“carried” them.1

          Mere possession of a firearm cannot support a conviction

under the carry prong.    See Wainuskis, 138 F.3d at 186.   When a

vehicle is not involved, the defendant must move the weapon in some

fashion and the weapon must also be “within arm’s reach (readily

accessible).”   See id. at 187.2

          In Wainuskis, a drug trafficker admitted purchasing guns

to protect her drugs in Petal, Mississippi.    She later moved to

Ellisville, Mississippi and continued to sell drugs.        Police

officers found Wainuskis lying in bed.    A loaded semi-automatic

pistol lay within arm’s reach under the edge of the mattress.   The

court inferred that Wainuskis had transported the pistol during the

move and kept it within reach to protect the drugs.     See id. at

187-88.   It rejected her § 2255 claim that the evidence was

insufficient to convict her under the carry prong of § 924(c)(1).

See id.

          In United States v. Hall, 110 F.3d 1155 (5th Cir.1997),

narcotics agents found Hall in a room and observed a firearm on the



     1
          Bailey did not alter law as to the carry prong.       See
Wainuskis, 138 F.3d at 186.
     2
          While this court stated that the carry prong required
either transportation or arm’s reach in United States v. Hall, 110
F.3d 1155, 1161 (5th Cir.1997), Wainuskis established that both are
necessary. See Wainuskis, 138 F.3d at 187 n.12.

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floor close to drugs.     The evidence did not show the spatial

arrangement of Hall and other defendants with respect to the gun.

There was also no evidence that Hall transported the gun to the

room.   The court found the evidence insufficient to support his

conviction under the carry prong.    See id. at 1162.

          Finally, the parties cite two unpublished decisions on

this issue.   In United States v. Townsend, 1999 U.S. App. LEXIS

13872, at *16-17 (5th Cir. June 24, 1999), this court reversed a §

924(c)(1) conviction because a pistol lying on the edge of a hot

tub was not within arm’s reach of Townsend while he was in bed.    In

United States v. Morris, 1997 U.S. App. LEXIS 11976, at *5 (5th

Cir. May 23, 1997), this court held that a firearm on a table next

to a sofa on which the defendant was sitting supported a §

924(c)(1) carrying conviction.

          Turning to this case, the evidence is insufficient to

support Cooper’s conviction under the carry prong.      Shotguns in a

closet six to eight feet away are not within arm’s reach.      It is

too much of a reach to find that Cooper could have grabbed the guns

at such a distance from him in order to assist his crime.

          The government contends that Cooper is also guilty under

§ 924(c)(1) because the unidentified man in the room was a co-

conspirator who carried a pistol. Defendants are responsible under

§ 924(c)(1) for the acts of other conspiracy members in pursuit of

their unlawful scheme.   See United States v. Wilson, 105 F.3d 219,


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221 (5th Cir.1997) (affirming a conviction where the defendant

conceded   that      a    co-conspirator       violated     §    924(c)(1)).        The

government argues that the numerous drug transactions in the

fortified club and the fact that Cooper was arguing with an armed

man over     money       while   holding   drugs    demonstrate        that   the   two

conspired.

           While relevant, mere presence at a crime scene or close

association with conspirators does not support an inference of

participation in a conspiracy.             See United States v. Maltos, 985

F.2d 743, 746 (5th Cir.1992).                  We will not “lightly infer a

defendant’s knowledge of and participation in a conspiracy.                        Thus,

the government may not prove up a conspiracy merely by presenting

evidence placing the defendant in ‘a climate of activity that reeks

of something foul.’”             Id. (internal citations omitted) (quoting

United States v. Galvan, 693 F.2d 417, 419) (5th Cir.1982).

           In Maltos, the defendant’s “presence at various times and

places   coincided         to    a   remarkable    extent       with   that   of    the

conspirators and of the cocaine. . . .”                         Id. at 747.         The

government presented no proof of knowledge or participation in the

conspiracy other than his association with the conspirators and his

presence at the transactions.            See id. at 747.        The court found the

evidence insufficient to support a conviction for conspiracy.                       See

id. at 748.




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            The government cites United States v. Valdiosera-Godinez,

932 F.2d 1093, 1096 (5th Cir.1991) in support of its claim that the

unidentified man was a co-conspirator. In that case, the defendant

was with two drug traffickers in a partially closed storage shed

five feet off the ground.          The other men were using tools to remove

concealed     drugs   from    a    car.        This   court    concluded    that    the

defendant’s presence and the “total absence of rational non-

inculpatory explanations of the facts” were sufficient to convict

him of conspiracy.      Id.

            In this case, there is insufficient evidence to convict

Cooper under § 924(c)(1) using conspiracy liability.                       Beyond the

man’s mere presence, we know only that he was armed and argued

about money while Cooper held cocaine.                There is no evidence of the

man’s identity or what relation he had to Cooper.                    The facts are

suggestive, but they permit no rational inference of the existence

of an agreement essential to conspiracy.                  A jury could not find

beyond a reasonable doubt that Cooper unlawfully used a firearm

through his relationship with the armed man.

            Finally, the government argues that if we vacate this

conviction     we   should    remand      to    allow   the     district    court   to

resentence Cooper under USSG § 2D1.1(b)(1).                   We agree.    See United

States v. Hernandez, 116 F.3d 725, 727 (5th Cir.1997) (district

court   can    resentence         other   counts      under     §   2D1.1(b)(1)     if




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defendant’s 924(c)(1) conviction is vacated); United States v.

Rodriguez, 114 F.3d 46, 47 (5th Cir.1997) (same).

                           CONCLUSION

          For these reasons, we VACATE and REMAND for entry of

judgment vacating this § 924(c)(1) conviction and vacate Cooper’s

entire sentence for resentencing in light of the grant of habeas

relief.

          VACATED and REMANDED with instructions.




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