United States v. Bell , 137 F.3d 1274 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 96-2626
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee.
v.
Yvette BELL, Defendant-Appellant.
March 23, 1998.
Appeal from the United States District Court for the Northern District of Florida. (No. 1:95-CR-
01014-002), Maurice M. Paul, Judge.
Before COX and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.
PER CURIAM:
This case requires us to decide if Pinkerton co-conspirator liability continues to apply to
section 924(c) cases after the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116
S.Ct. 501, 133 L.Ed.2d 472 (1995). We conclude that it does and therefore affirm the district court's
refusal to permit Bell to withdraw her guilty plea.
18 U.S.C. § 924(c) punishes individuals who use or carry a firearm in connection with drug
trafficking or a crime of violence. In Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct.
1180, 1184-85, 90 L.Ed. 1489 (1946), the Supreme Court held that criminal defendants are liable
for the reasonably foreseeable actions of their co-conspirators. Pinkerton liability is well established
in this Circuit, see, e.g. United States v. Broadwell, 870 F.2d 594, 603-04 (11th Cir.1989), and
although we have apparently never directly confronted the issue, the general rule among the circuits
has been that the Pinkerton doctrine is applicable in section 924(c) cases, see, e.g. United States v.
McManus, 23 F.3d 878, 883 (4th Cir.1994), United States v. Castaneda, 9 F.3d 761, 765 (9th
Cir.1993), cert. denied, 511 U.S. 1041, 114 S.Ct. 1564, 128 L.Ed.2d 210 (1994); United States v.
Davis, 1 F.3d 1014, 1017 (10th Cir.1993).
The district court correctly held that the Supreme Court's opinion in Bailey did not preclude
the application of Pinkerton liability in Bell's case. In Bailey, the Court held that a conviction for
"using" a firearm required proof of active employment of a weapon, and that proof of mere
possession was insufficient. See Bailey, 516 U.S. at 142, 116 S.Ct. at 506. Bailey interpreted the
meaning of the word "use." Every appellate court opinion we have found on this issue has squarely
held that Pinkerton liability continues to apply to section 924(c) offenses subsequent to Bailey. See
e.g. Woodruff v. United States, 131 F.3d 1238, 1243 (7th Cir.1997); United States v. Fonseca-Caro,
114 F.3d 906, 907 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 895, --- L.Ed.2d ---- (1998);
United States v. Wilson, 105 F.3d 219, 221 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 133, ---
L.Ed.2d ---- (1997); United States v. Myers, 102 F.3d 227, 237-38 (6th Cir.1996), --- U.S. ----, 117
S.Ct. 1720, 137 L.Ed.2d 843 (1997); United States v. Rodger, 100 F.3d 90, 91 (8th Cir.1996), cert.
denied, --- U.S. ----, 118 S.Ct. 145, --- L.Ed.2d ---- (1997); United States v. Pimentel, 83 F.3d 55,
58 (2d Cir.1996).
We agree with the reasoning of our sister circuits and now expressly hold that the Supreme
Court's decision in Bailey did not eliminate Pinkerton liability.
The sole issue on this appeal is whether the district court should have allowed plaintiff to
withdraw her pre-Bailey guilty plea because without Pinkerton, the government's proffer was
insufficient to constitute a crime. Since the government's proffer was sufficient factually to provide
the basis for Pinkerton liability, the court properly denied the motion to withdraw.
AFFIRMED.