United States of America, Plaintiff-appellee, v. Christopher Joseph Martinez, Defendant-appellant, 133 F.3d 930 (9th Cir. 1998)Annotate this Case
Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.
Federal prisoner Christopher J. Martinez appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence for armed bank robbery and knowingly using and carrying a firearm during a crime of violence in violation of 18 U.S.C. §§ 2113(a) (d) and 924(c) & (d).
Martinez contends that he did not "use" the firearm pursuant to Bailey v. United States, 116 S. Ct. 501 (1995), because only his codefendant used the firearm during the bank robbery and because the indictment never charged him with aiding and abetting. Martinez's contention is precluded, however, by our decision in United States v. Washington, 106 F.3d 1488 (9th Cir. 1997), where we held that the " 'silent but obvious and forceful presence of a gun ... can be a "use," '... and that is true whether the gun is 'on a table', ... or, as here, in the hands of a confederate." Id (quoting Bailey, 116 S. Ct. at 508). Martinez's codefendant clearly "used" the firearm during the bank robbery, and Martinez was well-aware of its use during the robbery.