explaining that “[tjhere can be little doubt that the instructions ... were plainly erroneous in light of Bailey ” when instruction permitted guilty verdict by finding mere possession of weapon that facilitated drug offense
How later courts described this case
- explaining that “[tjhere can be little doubt that the instructions ... were plainly erroneous in light of Bailey ” when instruction permitted guilty verdict by finding mere possession of weapon that facilitated drug offense
- stating that although the Cooke panel did not need to consider whether a weapon is “carried” if not within immediate reach, a brief discussion of the issue was warranted in light of statements made in Molina
- explaining that ineffective assistance claims rarely find any factual support in the trial record “and an adverse determination on direct appeal will be res judicata in any subsequent collateral attack”
- stating that the mere fact that the prosecutor used his peremptory challenges to exclude two African-Americans, without more, is insufficient to raise an inference of discrimination
Written by the judges who cited it.
The opinion
DIANE P. WOOD, Circuit Judge,
concurring.
In light of this court’s recent decision in United States v. Molina, 102 F.3d 928 (7th Cir.1996), the majority raises the question whether we must decide whether a weapon must be immediately accessible to someone in order to be “carried” for purposes of 18 U.S.C. § 924 (c)(1), and concludes that this issue need not be resolved at the present. I agree with that, and I write to point out that resolution of this point was similarly unnecessary to the decision in Molina , notwithstanding language in that case purporting to hold definitively that a gun does not need to be within a defendant’s immediate reach to qualify under the statute. Taken literally, part of the statement in Molina is true and follows from our earlier decisions: something can be immediately accessible even if it is not in the person’s hand and he must move in order to reach it. In United States v. Baker, 78 F.3d 1241 (7th Cir.1996), for example, we held that a weapon was “carried” when it was located under the defendant’s car seat. The defendant plainly would have needed to move in order to put his hands on the gun, but it *1303 was close enough to him that his practical access to it was immediate. Baker also reserved for possible future consideration the question whether a loaded gun in the locked trunk of a car would be enough for a § 924(c)(1) conviction.
Neither Molina nor Cooke’s case presents facts that require us to resolve the question reserved in Baker . In Molina , as the concluding paragraph of the opinion makes clear, “a rational trier of fact could have found beyond a reasonable doubt that the loaded weapon was within Molina’s reach.” 102 F.3d at 932 . In the present case, depending on the version of the facts the jury accepted, a rational trier of fact could find that Cooke himself carried his luggage to the truck. This would easily satisfy the “carrying” element of § 924(c)(1). Because the truck never moved, I agree that it is not necessary (or even appropriate) to reach the question whether the mere presence of the gun, well away from Cooke’s immediate reach, would also satisfy the statute under the broader Molina dicta. It would be a considerable expansion of § 924(c)(l)’s “carrying” theory to hold that guns located in locked trunks, or in a suitcase located within the cargo hold of an airplane, were also “carried.” We should take the same care in differentiating between “carrying” and mere possession as the Supreme Court required us to do with the analogous distinction between “use” and mere possession in Bailey v. United States, — U.S.-, 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995). When we are presented with a case where the question of immediacy is squarely presented, it will be time enough to decide how direct access must be to satisfy the “carrying” language of § 924(c)(1). On this understanding, I am happy to concur in the court’s opinion.