                   Revised September 15, 1998

                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                          No.    96-41086




                    UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,


                                VERSUS


                      ROBERT W. SCHMALZRIED,


                                             Defendant - Appellant.



          Appeal from the United States District Court
                for the Eastern District of Texas

                         August 20, 1998


Before DAVIS, E. GARZA and BENAVIDES,    Circuit Judges.

PER CURIAM:

     Appellant Robert W. Schmalzried (“Schmalzried”) appears before

this court a second time1 and appeals the district court’s denial

of his 28 U.S.C. §2255 motion to vacate his judgment of conviction

pursuant to 18 U.S.C. § 924(c)(1) (Supp. 1998), due to the Supreme


     1
        In a direct appeal, Schmalzried contended that there was
insufficient evidence to support a conviction under 18 U.S.C.
§ 924(c)(1). We affirmed his conviction in an unpublished opinion.
United States v. Schmalzried, 947 F.2d 1487 (5th Cir. 1991).
Court’s clarification of what constitutes “use” of a firearm in

Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501 (1995).           The

Appellant contends that post-Bailey, his conviction cannot rest on

the “use” prong of §924(c)(1), and that the evidence does not

support his conviction under the “carry” prong. The district court

denied Appellant’s request for habeas relief, concluding that while

his conviction under the “use” prong of §924(c)(1) was invalid, the

conviction could stand under the “carry” prong.          The Appellant now

appeals the district court’s denial of his habeas petition and

requests that this Court vacate his judgment of conviction under

§924(c)(1).    For the reasons that follow, we reverse the district

court’s denial of habeas relief, vacate Schmalzried’s conviction

under §924(c)(1), and remand for entry of a new plea.

                                       I.

     Following the execution of a search warrant at a residence in

Tyler,   Texas,    Robert     W.     Schmalzried,   a.k.a.   “Beeper   Bob”

(“Schmalzried”) and several codefendants, including his wife, Kelly

Ann Schmalzried, were arrested.              When the agents entered the

residence,     Schmalzried     and     two    codefendants   were   cooking

methamphetamine (“meth”) in the kitchen. The agents found a loaded

.25 caliber Model 9 Walther semi-automatic pistol in Kelly Ann

Schmalzried’s purse, which was placed on the coffee table in the

living room.      No one was in the living room when the agents

entered the residence.       Schmalzried admitted that he had given the



                                       2
gun to his wife for her personal protection,2 but stated that he

was unaware of the purse’s location at the time of his arrest.   A

codefendant, arrested at a motel some distance away, claimed that

the group had used guns to protect themselves and their drugs.

Kelly Ann Schmalzried stated that earlier in the day she had seen

her husband place the gun and two syringes in her purse.

     Schmalzried entered into a plea agreement with the Government,

in which he pled guilty to possession of a listed chemical with

intent to manufacture a controlled substance, in violation of 21

U.S.C. §841(d)(2) (1976 & Supp. 1998), and to using or carrying a

firearm during and in relation to any drug trafficking crime, in

violation of 18 U.S.C. §924(c)(1) (Supp. 1998). The district court

imposed consecutive sentences of ten years and five years for the

respective violations.   Following the Supreme Court’s issuance of

Bailey, Schmalzried filed a §2255 motion to vacate his conviction

under 18 U.S.C. §924(c)(1).   The district court denied his habeas

petition, and Schmalzried now appeals that decision to this Court.

                                II.

     We review a district court’s denial of a § 2255 motion under

two standards.   Because “acceptance of a guilty plea is considered

a factual finding that there is an adequate basis for the plea,”

the standard of review of this acceptance is clear error.    United

States v. Rivas, 85 F.3d 193, 194 (5th Cir.), cert. denied, 117 S.


     2
         She had been raped when she was twelve years old.

                                 3
Ct. 593 (1996).   We review the court’s conclusions of law de novo.

United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).

                                III.

     The district court concluded that Schmalzried’s conviction

cannot stand on the “use” prong of §924(c)(1) after Bailey.3    The

Government does not challenge this part of the district court’s

opinion.   The district court upheld his conviction under the

“carry” prong of §924(c)(1),4 however, and it is the validity of

this conclusion that is the subject of this appeal.

     Bailey did not address the “carry” prong of §924(c)(1), and

therefore has no effect on this Circuit’s precedents regarding

“carry” convictions.5   In a nonvehicular context, our cases require

that the weapon be moved or transported in some manner, or borne on


     3
        After Bailey, a person cannot be convicted of “use” under
18 U.S.C. § 924(c)(1) for merely possessing the firearm; the person
must actively employ the firearm. Bailey, 516 U.S. at 144, 116
S.Ct. 501 at 506.    The Bailey Court stated that the following
actions constitute “active employment”: “brandishing, displaying,
bartering, striking with and ... firing or attempting to fire, a
firearm.” Id. at 148, 116 S.Ct. 501 at 508. Because the firearm
supporting Schmalzried’s § 924(c)(1) offense was enclosed in a
purse and located in an adjacent room of the house, there was no
evidence of the kind of “use” contemplated in Bailey.
     4
        Where a conviction fails under the “use” prong of
§ 924(c)(1) after Bailey, it may stand if the “carry” prong is
satisfied. See, e.g., Bailey, 516 U.S. at 151, 116 S.Ct. 501 at
509 (remanding for consideration whether the convictions which fail
under the “use” prong may survive under the “carry” prong).
    5
        Rivas, 85 F.3d at 195; United States v. Tolliver, 116 F.3d
120, 126-27 (5th Cir.), cert. denied, 118 S. Ct. 324 (1997); United
States v. Muscarello, 106 F.3d 636, 638 (5th Cir. 1997), aff’d,
Nos. 96-1654 & 96-8837, 1998 WL 292058 (Apr. 18, 1997).

                                  4
one’s person, during and in relation to the commission of the drug

offense.6    The Supreme Court has held that “during and in relation

to any drug trafficking crime” means that “the firearm must have

some purpose or effect with respect to the drug trafficking crime;

its presence or involvement cannot be the result of accident or

coincidence.”     Smith v. United States, 508 U.S. 223, 238 (1993).

        The gun was “carried” when Schmalzried moved it to Kelly Ann

Schmalzried’s purse earlier during the day on which the police

raided the meth lab.      As a result, we examine the evidence to

determine whether the carry occurred “during and in relation to” a

drug offense.

        The dissent reads Smith to interpret “during and in relation

to” to mean that the firearm must have some purpose or effect with

respect to the drug crime, but that no such nexus is required

between “carrying” the firearm and the drug offense.    We disagree.

Nothing in Smith requires us to ignore the plain language of the

statute.    Smith explains the “during and in relation to” clause in

the context of “using” a firearm.      The Court explained that an

attempt to trade a gun for drugs is a “use,” and then explained

that to be used during and in relation to a drug offense, “the

firearm must have some purpose or effect with respect to the drug

trafficking crime.” 508 U.S. 223 at 238, 113 S.Ct. 2050 at 2058.



    6
       See, e.g., United States v. Thompson, 122 F.3d 304, 307 (5th
Cir. 1997).

                                   5
       Other courts read Smith the same way.              A New York district

court held that under Smith, “during and in relation to a drug

trafficking offense means that the carrying of the weapon somehow

furthered or facilitated the underlying offense.”                 Triestman v.

Keller, No. 97-CV-1460, 1998 WL 52026, at *3 (N.D.N.Y. Feb. 2,

1998).    The court held:     “In order for the carrying of a firearm to

be considered during and in relation to a conspiracy, however,

there must be ‘a nexus between the carriage of the gun and the

underlying crime of conspiracy.’” Id.

       Other courts also require the government to require a nexus

between use or carriage and the underlying offense.                 See, e.g.,

United States v. Lampley, 127 F.3d 1231, 1241 (10th Cir. 1997),

cert. denied,      118 S. Ct. 1098 (1998), cert. denied, 118 S. Ct.

1099     (1998),   and     cert.    denied,   118    S.     Ct.   1201    (1998)

(“Essentially, we must determine whether the evidence in the record

is sufficient, as to both Mr. Lampley and Mr. Baird, to establish

a nexus between the carriage of the gun and the underlying crime of

conspiracy.”); In re Hanserd, 123 F.3d 922, 927 (6th Cir. 1997)

(The court declined to uphold the §924(c)(1) conviction where

“[t]here    was    no    evidence   that   Hanserd    was    engaged     in   any

substantive drug crime while he carried the guns” and where the

evidence “in no way indicates a nexus between those crimes and

carrying the guns.”); United States v. Pomranz, 43 F.3d 156, 160

(5th Cir. 1995) (“Thus, only the act of carrying a weapon ‘during

and in relation to . . . [a] . . . drug trafficking crime’ is a

                                       6
substantive offense under §924(c)(1).”).

     We therefore hold that under Smith, the government was obliged

to demonstrate that by its carriage (to Kelly Ann Schmalzried’s

purse), the firearm had a “purpose or effect” with respect to the

drug offense (possession of a controlled chemical).   The record is

silent on a number of facts and that silence prevents us from

drawing an inference that, by its carriage, the firearm had such a

purpose or effect.   We do not know where the purse was located when

Schmalzried placed the gun in it or whether Schmalzried “carried”

the pistol into the house.    Schmalzried moved the gun within the

house before he placed it in his wife's purse, but we do not know

the location of the gun immediately before he placed it in her

purse or where the purse was located when he placed the gun in it.

     Because the record’s silence renders a critical element of a

“carry” offense under §924(c)(1) unsatisfied, and the conviction

cannot survive under the “use” prong after Bailey, we conclude that

Schmalzried’s plea of guilty with regard to this count must be

vacated.   We therefore reverse the district court’s denial of

habeas relief, vacate the plea of guilty under §924(c)(1), and

remand this case to the district court for entry of a new plea.

     REVERSED, VACATED and REMANDED.




                                 7
EMILIO M. GARZA, Circuit Judge, dissenting:

     The question presented by this § 2255 petition is whether the

district   court   committed   clear   error   in   concluding   that   the

defendant “carried” a firearm “during and in relation to” a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1) when (1)

the defendant took the gun, and together with several syringes,

placed it in his wife’s purse on the critical day in the drug

trafficking conspiracy, (2) other members of the drug conspiracy

also carried guns, and (3) other members of the conspiracy told

government agents that the group used guns for protection while

manufacturing drugs.    Against this weighty evidence, the defendant

asserts only that he did not “carry” the gun “during and in

relation to” a drug trafficking crime because he had previously

given the gun to his wife as a result of her rape at a young age.

Concluding that the district court did not commit clear error, I

respectfully dissent.

     We review challenges to the factual basis for a guilty plea

under FED. R. CRIM. P. 11(f) only for clear error. See United States

v. Rivas, 85 F.3d 193, 194 (5th Cir. 1996).         Section 924(c)(1), by

its very terms, requires three elements to sustain a conviction

under its “carry” prong: (1) there is a crime of violence or drug

trafficking crime; (2) the firearm is “carried,” and (2) such

“carrying” is “during and in relation to any crime of violence or

drug trafficking.” The majority assumes that Schmalzried’s carrying


                                   8
of the gun and placement of it into his wife’s purse along with

several syringes satisfies the “carry” requirement.               The majority

asserts, however, that no nexal link exists between Schmalzried’s

carrying of the gun and the drug offense (and hence, Schmalzried

did not carry the gun “during and in relation to” the drug

trafficking crime) because we purportedly do not know when the gun

was placed in the purse, where the purse was when the gun was

placed in the purse, or how the placement of the gun into the purse

facilitated the conspiracy.7 Contrary to the majority’s conclusion,

relevant case law, as well as the record in this case, supports the

district     court’s   conclusion     that   Schmalzried    carried    the   gun

“during and in relation to” his drug trafficking crime.

       In Smith v. United States, 508 U.S. 223, 237-38, 113 S. Ct.

2050, 2058-59, 124 L. Ed. 2d 138 (1993), the Supreme Court gave an

expansive interpretation to the phrase “during and in relation to”:

             The phrase “in relation to” is expansive . . . as

       the   Courts    of   Appeals   construing    §   924(c)(1)     have

       recognized . . . According to Webster’s, “in relation to”

       means “with reference to” or “as regards.”             The phrase

       “in relation to” thus, at a minimum, clarifies that the


   7
      Contrary to the majority’s unfounded assertion that “[t]he dissent reads
Smith to interpret ‘during and in relation to’ to mean that the firearm must have
some purpose or effect with respect to the drug trafficking crime, but that no
such nexus is required between ‘carrying’ the firearm and the drug offense,” I
agree with the majority opinion that a nexal link is required between the
carrying of the gun and the predicate drug offense. See Majority Op. at 5. As
a factual matter and as I discuss below, however, I believe that the requisite
nexal link exists in this case.

                                       9
     firearm must have some purpose or effect with respect to

     the drug trafficking crime; its presence or involvement

     cannot be the result of accident or coincidence.                 As one

     court   has    observed,     the   “in    relation   to”    language

     “allay[s] explicitly the concern that a person could be”

     punished      under   §   924(c)(1)      for   committing    a    drug

     trafficking offense “while in possession of a firearm”

     even though the firearm’s presence is coincidental or

     entirely “unrelated” to the crime.             Instead, the gun at

     least must “facilitat[e], or ha[ve] the potential of

     facilitating,” the drug trafficking offense.



Id. (citations omitted); see also Muscarello v. United States, 118

S. Ct. 1911, 1918 (1998) (“Congress added these words [‘during and

in relation to’] in            part to prevent prosecution where guns

‘played’ no part in the crime.”).            The Supreme Court’s decision in

Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed.

2d 472 (1995), did not disturb the meaning of this phrase.                     See

United States v. Tolliver, 116 F.3d 120, 125 (5th Cir. 1997).

     A rendition of the facts, as detailed in the government’s

proffer and attached affidavits of federal officers, indicates the

reasonableness of the factual basis for the district court’s

conclusion that Schmalzried carried the gun and that a nexal link

existed between the carrying of the gun and the drug trafficking


                                        10
crime.     Drug Enforcement Agency (“DEA”) agents in Tyler, Texas,

learned, on or about December 8, 1990, that several persons had

traveled from Houston, Texas to Tyler to manufacture drugs.              DEA

agents also learned at approximately the same time that a chemical

company in Alabama had shipped chemicals necessary to manufacture

methamphetamine to Tyler by Federal Express.         DEA agents, assisted

by local police officers, began surveillance of various locations

on December 10, and spotted a U-Haul truck at a local motel.             The

U-Haul truck had been rented in Houston by James Smertneck, who

happened to be the same person to whom the shipment of chemicals

was to be delivered.       Subsequent surveillance over the next few

days   identified   Smertneck,   Michael   Edmond    Swisher,   Susan    Ann

Lindsey,    Vera   Lynn   McDonald,   Robert   Wilmer   Schmalzried     (the

defendant here), and Kelly Anne Schmalzried (“Kelly Anne;” Robert

Wilmer Schmalzried’s wife) coming and going between the motel and

a residence at 3023 Benbrook Drive in Tyler.

       Events came to a head on December 12.        At around 10:15 a.m.,

agents observed Smertneck and Lindsey leave the residence at 3023

Benbrook and drive to the Federal Express office to pick up the

chemicals in a car.       On the way to the Federal Express office,

Smertneck drove erratically, making several u-turns and cut-backs,

as if in an attempt to determine whether he was being followed.

Smertneck eventually arrived at the Federal Express office, picked

up the chemicals, and returned to 3023 Benbrook.         After unloading

the chemicals, several (unidentified) members of the group got in

                                      11
the car at 10:51 a.m. and drove to the motel where the U-Haul was

located.   At 11:26 a.m., both the car and U-Haul left the motel and

drove to 3023 Benbrook.      Members of the group then unloaded the U-

Haul, making a total of nine trips to do so.         Another member of the

group left 3023 Benbrook, drove to K-Mart, and returned to the

residence.    Members of the group apparently then settled down to

manufacture methamphetamine, the manufacture of which takes eight

hours.     While they were doing so, agents swore out a search

warrant, and executed the warrant at approximately 8:30 p.m. that

night.   When agents executed the warrant, they found Schmalzried,

Kelly Anne, and Smertneck clustered around the methamphetamine

manufacturing apparatus.        Swisher and McDonald were located in

other rooms in this house.           Agents later determined that the

apparatus and quantity of chemicals in the house was sufficient to

produce 1.5 kg to 2 kg of methamphetamine.         Agents also discovered

a loaded .25 caliber semi-automatic pistol in the purse of Kelly

Anne lying on the coffee table in the living room.8              Kelly Anne

told agents that Schmalzried had put the gun in her purse earlier

that same day along with two syringes.           She further told police

that she had seen Schmalzried handling the gun earlier that day.

Police executed another search warrant at the motel where the U-

Haul had previously been seen.         The police discovered Lindsey at

the motel, who had in her possession a fully loaded 12-gauge


  8
      Schmalzried was charged with violating § 924(c)(1) based on this pistol.

                                     12
shotgun.     She told agents that Swisher had directed her to carry

the shotgun from the cab of the U-Haul truck into the motel room.

Lindsey told also agents that the group had firearms to protect

themselves and the drugs while they were being manufactured.

     Several    inferences       emerge    from    this   evidence.    First,

Schmalzried     was      indicted    for     conspiracy      to   manufacture

methamphetamine. We have, on several occasions, suggested that all

of the acts that occur during a conspiracy can be considered in

determining the sufficiency of the factual basis for a § 924(c)(1)

guilty plea in cases where the defendant is charged with, but not

convicted of, conspiracy.         See United States v. Ramos-Rodriguez,

136 F.3d 465, 467 (5th Cir. 1998) (“This court has recognized that

[§ 924(c)(1)] does not require an underlying conviction . . . It is

the ‘fact of the offense, and not a conviction, that is needed to

establish the required predicate.’”) (quoting United States v.

Munoz-Fabela, 896 F.2d 908, 910-11 (5th Cir. 1990)) (upholding a

conviction for violation of § 924(c)(1) based on events covered by

an indictment for conspiracy that the government had dismissed as

part of a plea bargain).         Thus, although Schmalzried pled guilty

only to possession of controlled substances and the § 924(c)(1)

violation,     because     the   government       indicted   Schmalzried   for

conspiracy,    all    of   the    other    actions    occurring   during   the

conspiracy were properly before the district court in determining

whether Schmalzried carried the gun “during and in relation” to the


                                      13
drug trafficking crime. See also United States v. Wainuskis, 138

F.3d 183, 187-88 (5th Cir. 1998).

       Second, the majority misconstrues the record when it states

that we do not know “whether he [Schmalzried] brought the pistol

into the house.”        Members of the group, including Schmalzried,

traveled to Tyler specifically to manufacture drugs.9 Thus, unlike

the case in which an individual is arrested in his own home and a

gun and drugs are present, the district court could reasonably

conclude that the only items that members of this group (including

Schmalzried) had with them were those items that they had brought.

As the Supreme Court recently noted in Muscarello, 118 S. Ct. at

1916, § 924(c)(1)’s “chief legislative sponsor has said that the

provision seeks ‘to persuade the man who is tempted to commit a

federal felony to leave his gun at home’” (quoting 114 Cong. Rec.

22231 (1968) (Rep. Poff)). See also Busic v. United States, 446

U.S. 398, 405, 100 S. Ct. 1747, 1752, 64 L. Ed. 2d 381 (1980)

(noting    that    Representative      Poff’s    statements     are    “crucial

material” in interpreting the purpose of § 924(c)).

       Neither Schmalzried nor the majority disputes the fact that

Schmalzried carried the gun “during” the period in which the

conspiracy continued. Conspiracy to manufacture methamphetamine is

a continuing crime.       See United States v. Thomas, 12 F.3d 1350,


   9
      Although some group members came from Houston, Schmalzried lived in Mineral
Wells, Texas, at the time of the offense. Mineral Wells is west of Dallas and
a good distance from Tyler.

                                       14
1370 (5th Cir. 1994).       The evidence indicates that the conspiracy

began, at the latest, on December 8, when group members traveled

from Houston to Tyler, and when Smertneck ordered the chemicals

necessary to manufacture methamphetamine.         Schmalzried carried the

gun   on   December   12,   “during”    the   requisite   period   of   drug

trafficking activities.

      Thus, the majority’s outcome hinges on the proposition that

Schmalzried did not carry the gun “in relation to” the conspiracy

(i.e., that no nexal link exists between Schmalzried’s carrying of

the gun and the predicate drug offense).          It asserts that “[t]he

record is silent on a number of facts, and that silence prevents us

from drawing an inference that by its carriage, the firearm had

such a purpose or effect.”        Contrary to this assertion, however,

because we know that Schmalzried’s carrying of the gun and his

placement of it into his wife’s purse sometime on December 12))a

day during which members of the group procured chemicals, went to

various locations to retrieve the methamphetamine manufacturing

equipment,   and   manufactured    methamphetamine    all   day    long))the

precise time at which he did so is irrelevant.               Kelly Anne’s

statements to DEA agents that she saw Schmalzried carrying the gun

earlier that day and that he personally placed the gun in her purse

are highly significant: Schmalzried’s carrying of the gun occurred

during the critical period in the conspiracy when the chemicals

were being gathered, materials assembled, and drugs manufactured,



                                       15
suggesting that the firearm had some “purpose or effect” with

respect to either the manufacture of methamphetamine or the drug

conspiracy. See Smith, 508 U.S. at 238, 113 S. Ct. at 2059; see

also United States v. McKeever, 906 F.2d 129, 134 (5th Cir. 1990)

(Davis, J.) (“Where several guns . . . are found on the premises of

a drug laboratory, the obvious inference is that they were there to

protect the unlawful activity.”).     Schmalzried’s carrying of the

gun also occurred as he placed the gun in the purse along with

syringes of a sort that are commonly used for intravenous drug use,

further indicating the close link between the gun and drugs and

suggesting that the gun’s “presence or involvement [was] not the

result of accident or coincidence.”   Smith, 508 U.S. at 238, 113 S.

Ct. at 2059; United States v. Beverly, 921 F.2d 559, 563 (5th Cir.

1991) (“There is [] no doubt that firearms are drug traffickers’

tools of trade.”).

     The majority simply fails to address the possibility that the

requisite nexal link between the carrying of the gun and the

conspiracy exists as a result of the gun’s potential to protect the

group’s activities.   On the morning of December 12, members of the

group were constantly coming and going from 3023 Benbrook and

taking various actions related to the conspiracy.      Judging from

Smertneck’s evasive driving when he went to pick up the chemicals

at the Federal Express office, group members appear to have worried

that they might be under police surveillance.         Schmalzried’s


                                16
carrying of the gun and his placement it into Kelly Anne’s purse,

an item that she would be unlikely to leave behind if she left the

house,    is   important   because    that   location     may     have   provided

Schmalzried with a handy way to keep the gun nearby in case needed,

whether in the house or in another location, from whence it could

have been used to facilitate the group’s activities.                 See Smith,

508 U.S. at 238, 113 S. Ct. at 2059; see also Tolliver, 116 F.3d at

126   (upholding    conviction       under   §    924(c)(1)     where    firearm

potentially could have been used to protect drugs); United States

v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir. 1991) (“Weapons in

the home may facilitate a drug crime because the defendants could

use the guns to protect the drugs.”). Additionally, methamphetamine

manufacture takes eight hours; during this time, group members had

to remain at 3023 Benbrook to monitor the manufacturing process.

Placing the fully loaded gun in a purse in plain view on a coffee

table in the living room of the house where the manufacturing was

taking place, a spot that Schmalzried admitted to the district

court at the Rule 11 plea colloquy was readily accessible, ensured

that he could quickly utilize the gun to fend off intruders or

police.    See Smith, 508 U.S. at 238, 113 S. Ct. at 2059; see also

Capote-Capote,     946   F.2d   at   1104.       These   latter    two   points))

completely unaddressed by the majority))provide clear examples of

how Schmalzried’s carrying of the weapon “somehow furthered or

facilitated the underlying offense.”         Triestman v. Keller, No. 97-


                                       17
CV-1460, 1998 52026, at *3 (N.D. N.Y. Feb. 2, 1998).                Accordingly,

even   if    the   record   does   not    indicate   the   precise    time    that

Schmalzried placed the gun in his wife’s purse or where the purse

was located when he placed the gun in the purse, the extent of the

group’s drug manufacturing activities on December 12 and the gun’s

potential to further the group’s activities support the district

court’s conclusion that Schmalzried’s carrying of the gun and his

placement of the gun into his wife’s purse was “in relation to” the

group’s activities.         See Smith, 508 U.S. at 238, 113 S. Ct. at

2059; see also Ramos-Rodriguez, 136 F.3d at 469 (upholding a

conviction under § 924(c)(1) even where it was not clear precisely

when a defendant had carried a gun because “the court is satisfied

at some point during and in relation to this drug trafficking

crime” the defendant had done so).

       The government proffer and technical reports attached to the

proffer indicate that the group possessed chemicals sufficient to

manufacture 1.5 kg to 2 kg of methamphetamine.             The sheer quantity

of this amount of methamphetamine also gives rise to an inference

that   the    group   might   want   to    have   some   way   to   protect   its

investment. See United States v. Wilson, 884 F.2d 174, 177 (noting

that “the sheer volume of weapons and drugs makes reasonable the

inference that the weapons involved were carried in relation to the

predicate drug offense since they ‘increase[] the likelihood [the

drug offense will] succeed’”) (quoting United States v. Robinson,


                                         18
857 F.2d 1006, 1010 (5th Cir. 1988)).    This inference is further

strengthened by the fact))again not addressed by the majority

opinion))that other members of the group stated to government

agents that the group carried weapons “during and in relation to”

the conspiracy. When police executed a search warrant on the motel

room near which the U-Haul had been parked, Lindsey had a fully

loaded 12-gauge shotgun.   She also told police that the group used

guns to protect themselves and the drugs.     See United States v.

Rocha, 916 F.2d 219, 237 (5th Cir. 1990) (noting that the presence

of a gun carried by a fellow conspirator supported a finding that

defendant carried a weapon “during and in relation to” a drug

trafficking crime).   Accordingly, both the amount of drugs and the

actions of other members clearly support the district court’s

inference that Schmalzried carried the gun “in relation to” the

group’s activities.

     The Tenth Circuit’s decision in United States v. Lampley, 127

F.3d 1231, 1240-42 (10th Cir. 1997), cited in the majority opinion

at 6, is directly on point.    Lampley and his co-defendants were

convicted by a jury of conspiracy to make explosive devices for use

against government facilities and carrying firearms “during and in

relation to” the conspiracy.   Like Schmalzried, on appeal, Lampley

argued that no nexal link existed between the group’s carrying of

the firearms and the conspiracy because the group had purchased the

guns only after other persons made death threats against Lampley.


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The Tenth Circuit concluded that, although some evidence indicated

that Lampley had bought the gun for reasons not related to the

conspiracy, a jury could have also reasonably concluded that

Lampley subsequently carried the gun “during and in relation to”

the conspiracy.

     Like Lampley’s argument that the Tenth Circuit rejected,

standing alone in the face of this imposing mass of evidence

against Schmalzried is his self-serving assertion that he did not

carry the gun “during and in relation to” the manufacture of

methamphetamine or the drug conspiracy because he had given the gun

to his wife, Kelly Anne, as a result of her rape as a child.

Although I find that the above evidence both casts serious doubt on

the veracity of this assertion and suggests that the firearm could

have been used to protect the group’s activities (which Schmalzried

does not dispute and which would provide the necessary nexal link

between the carrying and the predicate drug offense), assuming,

arguendo, that his statement is true, we have held that we look not

solely to the defendant’s intent, but also to the totality of the

circumstances, in determining whether the defendant’s carrying of

the firearm was “during or in relation to” his drug trafficking

crime.   See United States v. Pace, 10 F.3d 1106, 1119 (5th Cir.

1993) (collecting Fifth Circuit cases analyzing the meaning of the

phrase “during and in relation to”). When weighed against the

totality of the circumstances, I simply fail to see how the


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district court’s choice not to credit Schmalzried’s self-serving

assertion can be viewed as clearly erroneous.

     Accordingly, I respectfully DISSENT.




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