United States of America, Plaintiff-appellee, v. Lief Erickson, Defendant-appellant, 134 F.3d 379 (9th Cir. 1998)

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U.S. Court of Appeals for the Ninth Circuit - 134 F.3d 379 (9th Cir. 1998)

Submitted January 12, 1998. **Decided Jan. 16, 1998


Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.


MEMORANDUM* 

Leif P. Erickson, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion to vacate the sentence imposed after his guilty plea to using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1). Erickson contends that pursuant to Bailey, his conviction and sentence should be vacated because he did not "use" the pistol that he left on his kitchen counter while selling cocaine to an undercover police officer. See Bailey v. United States, 116 S. Ct. 501, 505 (1995) (use means active employment that makes firearm operative factor in drug transaction). Erickson contends that he did not actively employ the pistol because it was eleven feet away from him and the officer and because he did not say the pistol was "only business" until the officer asked him about it. This contention lacks merit. By leaving the pistol on the counter, Erickson displayed it during the sale, and his words only confirmed that it was meant to deter theft of the cocaine. See id. at 508 ("the silent but obvious and forceful presence of a gun on a table can be a 'use' ").

Accordingly, we AFFIRM the district court's order.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4

 *

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