Opinion
D.C. No. CV-98-456(REJ)
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted March 6, 2000.
Appeal from the United States District Court for the District of Oregon, Robert E. Jones, District Judge, Presiding.
Before NOONAN, GRABER, and FISHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
As a result of a plea bargain, on February 5, 1996, Dennis Lee Reimer (Reimer) was sentenced to at least 10 years by the U.S. District Court for the District of Idaho for violating 18 U.S.C. § 924(c)(1) (using or carrying a firearm during or in relation to a drug trafficking crime) and 21 U.S.C. § 841(a)(1) (possessing methamphetamines with intent to distribute). Reimer did not directly appeal either his conviction or his sentence.
On March 9, 1998, Reimer filed a motion in the U.S. District Court for the District of Idaho under 28 U.S.C. § 2255, alleging that he was provided ineffective assistance of counsel, that he did not understand the nature of the charges, that he entered his guilty plea under duress, and that he was improperly convicted of a firearms count under 18 U.S.C. § 924(c) due to the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), of which he claimed to have been unaware at the time of his guilty plea. Bailey held that conviction under 18 U.S.C. § 924(c) requires evidence sufficient to show "active employment" of the firearm by the defendant.
Foreclosed from seeking relief under § 2255, see United States v. Lorentsen, 106 F.3d 278, 279-80 (9th Cir.1997), Reimer brought a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, again alleging three claims for relief, specifically: (1) denial of effective assistance of counsel; (2) conviction obtained by a plea of guilty that was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea; and (3) incorrect application of the law under Bailey. In respect to the Bailey argument, Reimer alleges that he was entrapped-passively receiving the firearm as a "vehicle of barter"-and thus did not fall under the Supreme Court's interpretation of "use."
Assuming for the purposes of the motion that a § 2241 habeas petition could be brought, the district court found that Reimer's claims did not raise " 'serious questions as to 2255's constitutionality' such that a writ of habeas corpus may be brought under 2241." It based its decision on the fact that Bailey explicitly reaffirmed Smith v. United States, 508 U.S. 223 (1993), which had held that the barter of a gun for drugs constitutes a "use" under § 924(c)(1). On August 7, 1998, the court held Reimer's Bailey claim, and the two other extrapolatory claims, to be without merit and sua sponte dismissed the petition with prejudice.
We review de novo the district court's decision to grant or deny a federal prisoner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. See McLean v. Crabtree, 173 F.3d 1176, 1180 (9th Cir.1999).
Assuming arguendo that the merits are before us, we note that Reimer's claim that his conduct did not fall within the meaning of § 924(c) cannot succeed. Without elaboration, Reimer states that he was entrapped by the government and that his pleadings, liberally construed, support such a reading. The district court erred, Reimer claims, in assuming that it was Reimer who had supplied a gun in return for drugs. Reimer contends that such passive receipt of a gun by a defendant as payment for drugs does not constitute use under 924(c)(1) and entitles him to habeas relief. Specifically, Reimer asks this court to analogize to United States v. Westmoreland, 122 F.3d 431 (7th Cir.1997), and United States v. Warwick, 167 F.3d 965, 975 (6th Cir.1999), two cases that turned on the purposeful introduction of a firearm into the transaction by a government agent in order to enhance the sentence, and were found therefore not to constitute use.
A review of the district court's opinion does not bear out Reimer's claim of error; the court nowhere takes a view as to whether Reimer was the recipient or the supplier of the gun. It does not appear to have needed to. Reimer admitted in his own pleadings that he "bartered" the firearm for narcotics, clearly falling within the confines of Smith. As the district court noted, the barter rule in Smith has not been overruled. Furthermore, the Ninth Circuit has expressly found Smith, read in light of Bailey, to mean that bartering a firearm still constitutes "use" of the weapon "in relation to a drug trafficking crime" within the meaning of § 924(c). United States v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir.1997); seealso Warren v. Crabtree, 185 F.3d 1018, 1023 (9th Cir.1999). We should note, finally, that a review of Reimer's original indictment indicates that Reimer was charged with trading a firearm not to a government agent, but to his co-defendant, for approximately one and one-half ounces of methamphetamine. Cf. Smith, 508 U.S. at 238 (finding that these facts satisfy "any reasonable construction" of § 924(c)).
AFFIRMED.