United States of America, Appellee, v. Tyrone E. Brawner, Appellant, 90 F.3d 591 (D.C. Cir. 1996)

Before: GINSBURG and RANDOLPH, Circuit Judges, and SHADUR, Senior District Judge.^* 

JUDGMENT

This court previously heard the appeal in this case and affirmed the appellant's conviction. The Supreme Court subsequently granted the Petition for Writ of Certiorari, vacated the judgment of this court, and remanded the case to this court for further consideration. The court is satisfied, after reviewing the parties' briefs, that appropriate disposition of the case does not call for further opinion. See D.C.Rule 36(b).

The appellant was convicted of using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (1). We affirmed the conviction, citing this court's decision in United States v. Bailey, 36 F.3d 106 (D.C. Cir. 1994) (in banc), rev'd, 116 S. Ct. 501 (1995), which established a "proximity and accessibility" test for using a firearm under § 924(c) (1). The Supreme Court rejected that test in Bailey v. United States, 116 S. Ct. 501 (1995), holding that " § 924(c) (1) requires evidence sufficient to show an active employment of the firearm by the defendant." Id. at 505. As the government concedes in its brief, there is no evidence in this case that the appellant actively employed the firearm. Therefore, it is

ORDERED and ADJUDGED that appellant's conviction and sentence for violating 18 U.S.C. § 924(c) (1) be vacated.