                                   _____________

                                   No. 94-2816SD
                                   _____________


United States of America,               *
                                        *
           Appellee,                    *
                                        *
     v.                                 *   On Remand from the
                                        *   Supreme Court of
                                        *   the United States.
Richard Estrada,                        *
also known as Taco Estrada,             *
                                        *
           Appellant.                   *

                                   ___________

                   Submitted:       March 4, 1996

                          Filed:   June 4, 1996
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, FAGG, Circuit Judge, and WILSON,*
     District Judge.
                              ___________

WILSON, District Judge.


     Defendant/appellant Richard Estrada (“Estrada”) was convicted
in the United States District Court, District of South Dakota, of
conspiracy to distribute controlled substances, a violation of 21
U.S.C. § 846, and using or carrying a firearm in relation to drug
trafficking, a violation of 18 U.S.C. § 924(c)(1).               Defendant
appealed and this Court affirmed both the conspiracy conviction and
the firearm conviction.        United States v. Estrada, 45 F.3d 1215
(8th Cir. 1995).   After the decision was rendered in this case, the



     *The Hon. William R. Wilson, Jr., United States District Judge
for the Eastern District of Arkansas, sitting by designation.
United States Supreme Court decided Bailey v. United States, 516
U.S. ____, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).               Estrada appealed
this Court’s decision and the United States Supreme Court granted
writ of     certiorari.        The    Supreme   Court    vacated      this    Court’s
judgment and remanded the case for further consideration in light
of its recent holding in Bailey, supra. Estrada v. United States,
____ U.S. ____, 116 S.Ct. 664, 133 L.Ed.2d 516 (1995).
     In Bailey, the Supreme Court held that to sustain a conviction
under 18 U.S.C. § 924(c)(1), the government must present “evidence
sufficient to show an active employment of the firearm by the
defendant.”    Bailey at 505.         The Court further stated that the mere
storage of weapons in close proximity to drugs or drug proceeds is
insufficient to constitute “active employment.”                      Bailey at 508.
Additionally,      the   Court   concluded      that    “[i]f   the     gun    is   not
disclosed     or   mentioned     by    the   offender,    it    is    not     actively
employed, and it is not ‘used’.”             Id.
     As this Court noted in its prior decision, a Mach 10 and a .22
caliber revolver were found in co-conspirator Dosset’s bedroom.                      A
partially loaded magazine for the Mach 10 was found within five to
seven feet from the bed in Dosset’s bedroom.              There was no evidence
at trial suggesting that Estrada “actively employed” the firearms
as that phrase has been defined by Bailey, supra.                       Absent such
evidence, a conviction under 18 U.S.C. § 924(c)(1) cannot be
sustained.
     In light of the Supreme Court’s holding in Bailey, Estrada’s
conviction for using or carrying a firearm in relation to drug
trafficking is reversed for lack of evidence and the case is
remanded to the district court for resentencing on the remaining
count. Estrada’s conspiracy conviction, however, is again affirmed.
     A true copy.
            Attest:
                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

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