                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-1997

United States v. Eyer
Precedential or Non-Precedential:

Docket 96-7310




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"United States v. Eyer" (1997). 1997 Decisions. Paper 108.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/108


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed May 14, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7310

UNITED STATES OF AMERICA

v.

ROBERT G. EYER,

Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 90-00039)

Argued: April 17, 1997

BEFORE: GREENBERG, ALITO, and ROSENN,
Circuit Judges

(Filed: May 14, 1997)

David M. Barasch
United States Attorney
Theodore B. Smith, III (argued)
Assistant U.S. Attorney
228 Walnut Street
Harrisburg, PA 17108

Attorneys for Appellee

Cheryl J. Sturm (argued)
P.O. Box 210
Westtown, PA 19395

Attorney for Appellant
OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant, Robert G. Eyer, appeals from an order entered
on April 11, 1996, denying his motion filed pursuant to 28
U.S.C. § 2255 ("section 2255"). On February 13, 1990, a
grand jury returned a one-count indictment charging Eyer
with using and carrying a firearm in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)
("section 924(c)(1)"). Eyer waived trial by jury, and was
convicted at a bench trial on May 21, 1990. On August 10,
1990, the district court sentenced Eyer to a five-year
custodial term followed by a three-year term of supervised
release to be served consecutively to any sentence he then
was serving.

On February 28, 1996, Eyer, through an attorney,filed a
motion under section 2255 to vacate, set aside, or correct
his sentence. The motion included a brief contending that
in Bailey v. United States, 116 S.Ct. 501 (1995), the
Supreme Court held that a defendant cannot be convicted
of a violation of section 924(c)(1) unless he "actively
employs the firearm in connection with the drug trafficking
offense." The brief further asserted that "active
employment" includes "brandishing, displaying, bartering,
striking with, firing, attempting to fire, or referencing the
firearm" but does not "include possession of a firearm at or
near the site of a drug crime, storing a weapon near drug
proceeds, or concealing a firearm nearby to be ready for
imminent confrontation."

The brief quoted the presentence report which explained
that a person cooperating with a drug task force placed an
order with Eyer for an ounce of cocaine to be delivered to
the purchaser's apartment. When Eyer arrived with the
cocaine the officers arrested him and seized the automobile
in which he was making the delivery. The officers then
obtained a search warrant and searched the vehicle, finding

                    2
a fully loaded Colt .380 caliber semi-automatic hand gun
with a live round in its chamber located in the console
between its front seats along with some cocaine.
Notwithstanding the location of the firearm, in his motion
Eyer claimed that there was "no evidence that[he] actively
employed the handgun." Thus, in his view, the
government's proof could not support the conviction under
section 924(c)(1) as construed in Bailey. Accordingly, Eyer
requested that the district court vacate his conviction and
sentence.

After the parties filed further pleadings, the district court,
without holding a hearing, ruled on the section 2255
motion in a memorandum accompanying the order of April
11, 1996. The court pointed out that Bailey applied only to
the "using" prong of section 924(c)(1) which speaks of a
defendant who, in the disjunctive, "uses or carries a
firearm" in relation to any crime of violence or drug
trafficking crime. The court then held that Eyer was
carrying the gun because he was transporting it by vehicle.
The court cited several cases in support of this holding
including United States v. Pineda-Ortuno, 952 F.2d 98, 103-
04 (5th Cir. 1992), and United States v. Freisinger, 937 F.2d
383, 387-88 (8th Cir. 1991). Based on these conclusions,
the district court denied the motion.

Eyer then appealed to this court and sought a certificate
of appealability from both the district court and this court.
On July 1, 1996, the district court granted a certificate of
appealability. Its order, however, does not specify the issue
or issues warranting granting the certificate
notwithstanding that 28 U.S.C. § 2253(c)(3) ("section
2253(c)(3)") requires a certificate of appealability under 28
U.S.C. § 2253(c)(1) ("section 2253(c)(1)") to indicate the
issues justifying its issuance. This court has not acted on
Eyer's application to it for the certificate of appealability.
The parties have briefed the case both on the procedural
issues and on the merits and have argued orally. We
exercise plenary review.

                    3
II. DISCUSSION

a. Procedural issues

The first issue is whether the district court properly
issued the certificate of appealability. The government
contends that the district court could not do so because
only a circuit justice or a circuit judge can issue a
certificate of appealability. Thus, the government argues
that unless we issue a certificate of appealability, we cannot
decide this case on the merits.

Until the enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132,
110 Stat. 1214 (1996), effective April 24, 1996, a petitioner
in federal custody who was denied relief by a district court
on a section 2255 motion could appeal to a court of appeals
without obtaining a certificate of probable cause. By
contrast, a petitioner challenging detention arising out of
process issued by a state court could not appeal "unless
the justice or judge who rendered the order or a circuit
justice or judge issue[d] a certificate of probable cause." 28
U.S.C. § 2253 ("section 2253"). The AEDPA changed these
procedures; in particular the Act replaced certificates of
probable cause with certificates of appealability and
required prisoners in federal custody to obtain a certificate
of appealability to appeal from the denial of relief under
section 2255.

Unfortunately, the AEDPA created an ambiguity with
respect to the designation of the judges who can issue
certificates of appealability. It amended section 2253 in
pertinent part to read as follows:

(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken
from --

 (A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court; or

(B) the final order in a proceeding under section
2255.

                    4
When Congress enacted the AEDPA it deleted from section
2253 the provision that the "judge who rendered the order"
could issue a certificate of probable cause, and thus there
is no provision in section 2253, as amended by the AEDPA,
providing that the judge who rendered the order may issue
a certificate of appealability. This deletion casts doubt on
the power of a district judge to issue a certificate of
appealability, especially inasmuch as the reference in
section 2253 prior to its amendment by the AEDPA to
"circuit justice or judge" arguably meant "circuit justice" or
"circuit judge." After all, the "judge who entered the order"
ordinarily would have been a district judge and thus it
would not have been necessary to read "judge" in "circuit
justice or judge" to include district judges in order to
authorize a judge denying the order to issue a certificate of
probable cause. Accordingly, the government reasonably
argues that the district court did not have the authority to
issue the certificate of appealability to Eyer.

We reject the government's argument. Certainly the term
"circuit justice or judge" is ambiguous as "circuit" might
modify only the word "justice" or might modify both
"justice" and "judge." Obviously, if "circuit" applies to
"judge" then only a court of appeals judge or circuit justice
can issue a certificate of appealability. We might reject this
application of "circuit" to "judge" on the ground that
"circuit" as applied to "justice" refers to the allocation of the
Supreme Court justices to the various circuits pursuant to
an order of the Supreme Court as authorized in 28 U.S.C.
§ 42. Under this reasoning, "circuit" as applied to "justice"
refers to a judicial assignment and "circuit" should not be
read to modify the word "judge" and thus be given a
different meaning and refer to judges on the basis of their
appointment, which in this case is to a court of appeals.

In the final analysis, however, we conclude on a different
basis that a district judge can issue a certificate of
appealability. In section 2253(c)(1), as amended by the
AEDPA, the language that an appeal may not be taken
unless a "circuit justice or judge" issues a certificate of
appealability is followed by the two subparagraphs, which
we quoted above: subparagraph A, relating to custody
arising out of process by a state court, and subparagraph

                     5
B, relating to proceedings involving federal prisoners under
section 2255. These paragraphs appear in section
2253(c)(1) in the disjunctive. This configuration makes it
difficult, if not impossible, to construe section 2253(c)(1) so
that "circuit justice or judge" has a different meaning in the
two subparagraphs. Yet we know that, unless we are willing
to hold that Congress made an extraordinary mistake in
drafting, a district judge must be able to issue a certificate
of appealability in a case arising under subparagraph A.

This conclusion cannot be avoided because the AEDPA
amended Fed. R. App. P. 22(b) to read in part as follows:

Certificate of Appealability. - In a habeas corpus
proceeding in which the detention complained of arises
out of process issued by a State court, an appeal by
the applicant for the writ may not proceed unless a
district or a circuit judge issues a certificate of
appealability pursuant to section 2253(c) of title 28,
United States Code. If an appeal is taken by the
applicant, the district judge who rendered the
judgment shall either issue a certificate of appealability
or state the reasons why such a certificate should not
issue.

Thus, at the very time that Congress amended section 2253
to remove the language providing that the "judge who
rendered the order" could issue a certificate of probable
cause, now a certificate of appealability, it provided in Rule
22(b) that a district judge in general, and the judge who
rendered the judgment in particular, ordinarily, of course,
a district judge, could issue a certificate of appealability.
Furthermore, the AEDPA amendment to Rule 22(b) referred
to section 2253(c) even though prior to the amendment
Rule 22(b) did not mention section 2253 which at that time
did not even have subsections. We also note that the
amendment to Rule 22(b) appears conspicuously in Title I
of the AEDPA, a short title dealing with habeas corpus
reform.

In these circumstances, we must conclude that Congress
deliberately amended Rule 22(b); we consequently hold that
section 2253(c)(1) authorizes a district judge to issue a
certificate of appealability in cases under subparagraph A

                    6
and thus necessarily under subparagraph B as well. Our
conclusion harmonizes Rule 22(b) and section 2253(c)(1),
and thus we reject any suggestion that these provisions are
inconsistent. Moreover, it would be strange to read section
2253(c)(1) to authorize district judges to issue certificates of
appealability in state but not in federal cases involving
custody of prisoners. If anything, one might expect that
Congress, for reasons of comity, would be more restrictive
in vesting the power to issue a certificate of appealability in
district judges in state rather than federal cases.1

We have reached our determination through our own
analysis. Nevertheless, we find it significant that other
courts of appeals have reached the same result, though
their reasoning may differ from ours. See Lozada v. United
States, 107 F.3d 1011, 1016 (2d Cir. 1997) ("We therefore
uphold the authority of district judges to issue COAs, at
least in section 2254 cases."); United States v. Asrar, 108
F.3d 217, 218 (9th Cir. 1997); Lyons v. Ohio Adult Parole
Auth., 105 F.3d 1063, 1066-73 (6th Cir. 1997), petition for
cert. filed, 65 U.S.L.W. 3648 (U.S. Mar. 14, 1997) (No. 96-
1461); Hunter v. United States, 101 F.3d 1565, 1573-77
(11th Cir. 1996) (en banc), petition for cert . filed, 65
U.S.L.W. 3648 (U.S. Mar. 10, 1997) (No. 96-1443).

Although we hold that the district court had the power to
grant a certificate of appealability, we face additional
procedural obstacles prior to deciding this appeal on the
merits. First, the certificate of appealability in this case
does not specify the issues that warrant its issuance as
required by section 2253(c)(3). In an appropriate case, such
an omission could lead us to remand the case for the
_________________________________________________________________

1. We agree with the Sixth Circuit that interpreting "circuit" as modifying
only "justice" and not "judge" is a somewhat "tortured interpretation, but
a possible one." Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1070
(6th Cir. 1997), petition for cert. filed, 65 U.S.L.W. 3648 (U.S. Mar. 14,
1997) (No. 96-1461). However, this interpretation provides the only
plausible means of harmonizing section 2253(c)(1) and Fed. R. App. P.
22(b). Harmonization seems particularly appropriate here, since it
appears that the arguably inconsistent language of these two provisions
was not adopted inadvertently. See Hunter v. United States, 101 F.3d
1565, 1581-82 (11th Cir. 1996) (en banc), petition for cert. filed, 65
U.S.L.W. 3648 (U.S. Mar. 10, 1997) (No. 96-1443).

                     7
district court to specify the issues. But we will not do so
here for two reasons. First, because there was only one
issue before the district court, the issue it determined
warranted the issuance of the certificate is obvious. Second,
at oral argument the government stated that if we
concluded that the district court had the power to issue the
certificate, we should decide the case on the merits without
remanding the case to the district court.

The second procedural obstacle we face prior to reaching
the merits of the appeal is more serious. 28 U.S.C.
§ 2253(c)(2) ("section 2253(c)(2)") provides that a certificate
of appealability can issue "only if the applicant has made a
substantial showing of the denial of a constitutional right."
Yet Eyer raises questions under Bailey involving issues of
statutory construction. Therefore, it is possible that Eyer
does not raise an issue involving a constitutional right. See
Hohn v. United States, 99 F.3d 892 (8th Cir. 1996).

Here, too, we avoid the procedural point because the
government, though contending that we should not issue a
certificate of appealability, does not contend that if we
construe section 2253(c)(1) to authorize district courts to
issue certificates of appealability, we should dismiss the
appeal on the ground that Eyer does not raise an issue
involving a constitutional right. Rather, at oral argument
the government took the position that if the district court is
empowered to issue certificates of appealability under
section 2253(c)(1), we should decide this case on the
merits. Thus, the determination of the meaning of
"constitutional right" in section 2253(c)(2) is not necessary
to the disposition of this appeal.

In reaching our result, we have not disregarded our
practice of examining our jurisdiction before reaching the
merits of an appeal, and we recognize the possibility that
the procedural problems we have identified could be
considered jurisdictional. Instead, we are applying the
settled principle "that an appellate court, confronted by a
difficult jurisdictional or quasi-jurisdictional question, may
forego its resolution if the merits of the appeal are, as here,
straightforward and easily resolved in favor of the party or
parties to whose benefit the objection to jurisdiction would
redound." In re DN Assocs., 3 F.3d 512, 515 (1st Cir. 1993).

                    8
See also Switlik v. Hardwicke Co., 651 F.2d 852, 856 n.3
(3d Cir. 1981) ("Because we conclude . . . that the district
court's judgment should be affirmed under well-settled
principles of res judicata and collateral estoppel, assuming
without deciding that we have jurisdiction permits a proper
and lawful resolution of the dispute without facing the
damages lurking in the murky waters surrounding the state
action question.").

In this case, certainly at least as to the construction of
section 2253(c)(2), difficult and far-reaching procedural
questions potentially are presented. Nevertheless, as will be
seen, we can affirm on the merits so that we will resolve the
appeal in favor of the government, the party "to whose
benefit [any] objection to jurisdiction would redound." In re
DN Assocs., 3 F.3d at 515. Thus, we will decide the appeal
on the merits.

Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623-24 (3d
Cir. 1996), cert. granted, 117 S.Ct. 379 (1996), is not
inconsistent with the action we take. There we indicated
that "[a]lthough we deem it wise not to decide most of the
jurisdictional issues posed by this case, we are obliged to
consider the threshold question whether we have appellate
jurisdiction to review the propriety, under Federal Rule of
Civil Procedure 23, of the district court's class certification."
But Georgine is distinguishable because there we held that
the class certification was improper. Thus, we vacated the
district court order certifying the class, and remanded the
case to the district court to decertify the class. Georgine, 83
F.3d at 635. Therefore, in Georgine we could not assume
that we had jurisdiction because we were not deciding the
case in favor of the parties to whose benefit the objection to
jurisdiction would redound.

Of course, we add that this opinion should not be taken
as an indication that in the future we will depart regularly
from our usual practice of determining whether we have
jurisdiction before reaching the merits of an appeal. To the
contrary, ordinarily we will adhere to that practice. See
Norton v. Mathews, 427 U.S. 524, 532-33, 96 S.Ct. 2771,
2775-76 (1976). Here, we decide the appeal on the merits
because, unlike resolution of the difficult questions relating
to the construction of section 2253(c)(2), consideration of

                     9
this appeal on the merits yields an obvious result.
Moreover, we can conceive of no procedural complications
that will flow from an affirmance in this case as our order
will terminate the section 2255 proceedings. Finally, and
perhaps most significantly, the order from which the appeal
has been taken is undoubtedly final and thus ordinarily
would be appealable. Only the provisions relating to
certificates of appealability cast doubt on our jurisdiction.
Accordingly, we regard this appeal as presenting a special
situation justifying our determination of the appeal on the
merits even if questions relating to our jurisdiction are
unsettled.

There is a final group of issues we must address before
reaching the merits of the appeal. Eyer contends that the
AEDPA is an ex post facto law when applied to crimes, such
as his, committed before its effective date, April 24, 1996.
In addition, he contends that the AEDPA unconstitutionally
restricts the writ of habeas corpus and is void for
vagueness. At oral argument we pointed out that
notwithstanding these contentions, the district court
granted the certificate of appealability so that it appeared
that Eyer's constitutional arguments would be moot if we
held that the district court properly issued the certificate.
Eyer agreed with this observation. In fact, even if we
sustained Eyer's constitutional arguments, he would be
entitled only to a determination of his appeal on the merits.
We will make that determination and, accordingly, we need
not consider his constitutional challenges to the AEDPA.

b. The merits of the appeal

Eyer argues that he is entitled to relief on the merits
because this case was tried "based on the expansive
definition of `use' set forth in United States v.
Theorodopoulos, 866 F.2d 587 (3d Cir. 1989) which held
that a firearm was `used' if it was available for possible use
during the drug transaction." Br. at 10. Eyer contends that
in United States v. Price, 76 F.3d 526, 528 (3d Cir. 1996),
we recognized that Theorodopoulos did not survive Bailey.
He also contends that the facts in this case could not
justify a conviction under the "carry" prong of section
924(c)(1).

                    10
The government answers that the Supreme Court in
Bailey, 116 S.Ct. at 509, recognized that its opinion did not
affect the "carry" prong of section 924(c)(1) and that a
"number of courts of appeals have held that possessing a
firearm in an automobile during and in relation to a drug
trafficking crime constitutes `carrying' under" section
924(c)(1). Br. at 35. It cites a number of cases to support its
conclusion on the point including United States v. Pineda-
Ortuno, 952 F.2d at 103-04, and United States v. Freisinger,
937 F.2d at 387-88, both of which the district court cited.

We are not concerned with what disposition we would
have made if this case had been tried to a jury because the
district court clearly convicted Eyer for carrying the firearm.
Accordingly, Bailey is not implicated here. Furthermore, the
facts here compel the conclusion that Eyer was carrying the
firearm. As we explained above, the handgun was loaded
and was in a console between the two front seats, and was
conveyed with the cocaine to the purchaser's apartment.
Eyer's easy access to the handgun and its transportation
convinces us that he was carrying it. Accordingly, we have
no occasion to address the broad question of whether it
always can be said that a defendant is carrying a firearm if
he or she has the firearm in a car while committing a drug
trafficking offense.

III. CONCLUSION

In view of the aforesaid, we will affirm the order of April
11, 1996. We deny Eyer's application to us for a certificate
of appealability as moot.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                    11
