                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2250
                                   ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *   Appeal from the United States
vs.                                      *   District Court for the Southern
                                         *   District of Iowa.
Wayne Gene Benson,                       *
                                         *          [PUBLISHED]
             Appellant.                  *

                                   ___________

                             Submitted: March 25, 1999

                                  Filed: July 12, 1999
                                   ___________

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
                            ___________

PER CURIAM.

       In 1992, Wayne Gene Benson pleaded guilty to federal drug conspiracy and
firearm offenses and was sentenced to fifteen years in prison. Some time later, the
government filed a Motion To Dispose of Evidence and Firearms under 18 U.S.C.
§ 3665. In July 1993, finding that Benson’s conviction under 18 U.S.C. § 924(c)
entitled the government to relief under § 3665, the district court ordered firearms,
accessories, and ammunition that had been trial exhibits “released to an agent of the
Iowa Division of Narcotics Enforcement for proper disposition.” That was done in
November 1993. After the Supreme Court decided Bailey v. United States, 115 S. Ct.
501 (1995), the government conceded that Benson’s § 924(c) conviction was improper,
and the district court vacated that conviction. In October 1997, Benson filed this
motion under Fed. R. Crim. P. 41(e) seeking return of the firearm equipment to his
brother. The district court1 denied relief. Benson appeals. We affirm.

         On appeal, Benson argues that he is entitled to Rule 41(e) relief because the
forfeiture order was based upon his § 924(c) conviction and became invalid when that
conviction was vacated. We put aside procedural questions such as whether the
forfeiture order may be collaterally attacked under Rule 41(e) years after entry of the
order and destruction of the firearms, for there is a simple answer to Benson’s
contention. The forfeiture was entered pursuant to § 3665, which provides that a
conviction for “committing or attempting to commit a felony . . . perpetrated in whole
or in part by the use of firearms” authorizes the court to “order the confiscation and
disposal of firearms and ammunition found in the possession . . . of the defendant at the
time of his arrest.” The operative language of § 3665 -- the felony must be
“perpetrated in whole or in part by the use of firearms” -- is broader than the operative
language of § 924(c) -- a firearm must be used or carried “during and in relation to any
. . . drug trafficking crime.” Accordingly, even if the evidence at Benson’s trial would
not support a § 924(c) conviction after Bailey, that alone does not establish that the
§ 3665 forfeiture order was invalid.

       Benson has made no factual showing that the trial evidence did not justify
forfeiture under § 3665. In affirming Benson’s § 924(c) conviction prior to Bailey, we
explained that “[t]he presence of the semi-automatic handgun in the garage a short time
after the conclusion of the drug sale . . . provides a ‘sufficient nexus’ between the
weapon and drug trafficking.” United States v. McPherson, 991 F.2d 802 (table),


      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

                                          -2-
1993 WL 106882, at p.1 (8th Cir. 1993). In these circumstances, the district court
correctly denied Benson’s Rule 41(e) motion.

      The judgment of the district court is affirmed.

      A true copy.

            Attest:

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




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