Unpublished Disposition, 931 F.2d 61 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 61 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Bennett Eugene BREWER, Defendant-Appellant.

No. 88-1840.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1991.* Decided April 23, 1991.

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges.


MEMORANDUM** 

Bennett Eugene Brewer, a federal prisoner, appeals pro se the district court's partial denial of his motion to vacate his sentence under 28 U.S.C. § 2255. We affirm.

On September 14, 1983, Brewer was convicted by jury trial for numerous narcotics and firearms violations arising out of a scheme to manufacture methamphetamine. In his section 2255 motion, he contended that his three convictions for carrying a firearm during the commission of a narcotics offense, in violation of 18 U.S.C. § 924(c), should be set aside because the district court did not instruct the jury that it was required to find that the firearms were carried not only "during" but also "in relation to" the underlying offense. The district court granted the motion as to Count 57 and denied it as to Counts 37 and 44. Brewer contends that the district court should have granted the motion as to all three counts.

We review de novo the denial of a motion under 28 U.S.C. § 2255. United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990). If defendants do not raise an issue at trial or on direct appeal, to prevail under section 2255 they must show cause excusing their procedural default and actual prejudice. United States v. Frady, 456 U.S. 152, 167-68 (1982). To show actual prejudice resulting from an erroneous jury instruction, defendants must show that " 'the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.' " Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The instruction must be evaluated in the context of the overall charge to the jury and the entire trial. Frady, 456 U.S. at 169.

The 1984 amendment of 18 U.S.C. § 924(c) to prohibit the carrying of a firearm "during" and "in relation to" the underlying narcotics offense merely clarified earlier legislative intent, and did not add a new element to the offense. United States v. Stewart, 779 F.2d 538, 539-40 (9th Cir. 1985). Accordingly, even for offenses committed before the amendment, the district court was required to instruct the jury that it must find that the firearm was carried both "during" and "in relation to" the underlying offense. Id. at 540. A defendant uses a firearm "in relation to" a narcotics offense when the " 'circumstances of the case show that the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge in fact occurred.' " United States v. Guy, 903 F.2d 1240, 1243 (9th Cir. 1990) (quoting Stewart, 779 F.2d at 540); see also United States v. Torres-Rodriguez, Nos. 89-30298, 89-30299, 89-30300, and 89-30301, slip op. at 4407 (9th Cir. April 4, 1991). The evidence must establish a " 'causal connection between the [defendant's] narcotics felonies and [the] firearm.' " United States v. Power, 881 F.2d 733, 736 (9th Cir. 1989) (quoting United States v. Ramos, 861 F.2d 228, 230 (9th Cir. 1988)).

Here, Brewer challenged the jury instruction for the first time in his section 2255 motion. The evidence at trial as to Counts 37 and 44 established that firearms were kept at a methamphetamine manafacturing laboratory near Miramonte, California, to protect the laboratory from the police and other intruders, and that several codefendants, including Brewer, had immediate access to the firearms. The evidence thus established that the firearms facilitated or were used "in relation to" the underlying narcotics offenses. See Guy, 903 F.2d at 1243. Accordingly, Brewer did not show actual prejudice by demonstrating that the jury might have acquitted him if it had been properly instructed. See Frady, 456 U.S. at 167-69; Kibbe, 431 U.S. at 154. We therefore affirm the district court's judgment.1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Brewer's motion for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Brewer also contends that the district court erred by denying his section 2255 motion because the evidence did not establish that he carried the firearms in question. This contention lacks merit because the jury instruction at issue addresses the element of connection between the firearms and the underlying offenses. See Stewart, 779 F.2d at 540. Thus, Brewer cannot logically argue that if the jury had been properly instructed that it was required to find that the firearms were carried "in relation to" the underlying offenses, it might have found that he did not participate in Counts 37 and 44