Appeal from the United States District Court for the Central District of California. D.C. No. CR-89-00711-RG. Richard A. Gadbois, Jr., District Judge, Presiding.
Before: J. Clifford Wallace, Chief Judge, Procter Hug, Jr., and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Hug.
In this case, we must determine the applicability of the recent Supreme Court case of Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), to Joaquin Garcia's conviction for use of a machinegun while drug trafficking in violation of 18 U.S.C. § 924(c)(1). We are also called upon to determine to what extent the Supreme Court's decision in Staples v. United States, 511 U.S. , 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994), requires the Government to prove the defendant's mens rea as an element of the crimes of possessing a machinegun with an obliterated serial number in violation of 26 U.S.C. § 5861, and using a machinegun in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).
I. FACTS AND PROCEDURAL HISTORY
The facts underlying Garcia's conviction are undisputed. On August 20, 1989, five Los Angeles County Sheriff's Deputies conducted undercover surveillance of an apartment complex in Southgate, California. When they arrived at the apartment, the officers found Cesar Cebreros at the back door of the apartment and appellant Garcia lying on the living room floor. The officers questioned Cebreros about rent and the neighborhood. Garcia translated the conversation from his position on the living room floor. When the officers asked Garcia to join the conversation at the door, they saw that he was holding a "kilo-sized" package wrapped in tape. They suspected that it contained cocaine. One of the officers then identified himself as a policeman and Garcia consented to the officers' entry into the apartment.
During a sweep of the apartment, the officers found and seized the package Garcia held. It contained 1,021 grams of cocaine. Upstairs, the officers found a machinegun in plain view and two other guns in a closet. Later searches of the apartment revealed 3.5 kilograms of cocaine, 124 grams of cocaine base, a kilogram of heroin, empty wrappings, cutting agents, and other tools of the drug trade. An officer later testified that the apartment appeared to be a typical stash house where drugs are stored and weapons are kept to protect the merchandise.
Garcia was arrested, tried, and convicted on five counts of possession with intent to distribute, two counts of possessing weapons without serial numbers, and one count of using a machinegun during and in relation to a drug trafficking crime. The district court imposed a 165-month sentence on the drug possession counts, a concurrent 120-month sentence for each of the two counts of possessing weapons without serial numbers, and a mandatory 360-month consecutive sentence for using or carrying a machinegun during or in relation to a drug trafficking offense.
Following his sentencing, Garcia petitioned the district court under 28 U.S.C. § 2255 to set aside his section 924(c)(1) 360-month consecutive sentence. The district court granted Garcia's request. Garcia and the Government appealed. The Government appealed the district court's decision to set aside the mandatory 360-month sentence under 18 U.S.C. § 924(c)(1). Garcia appealed his convictions, arguing as his sole basis that the officers' search of his residence and his subsequent arrest violated his Fourth Amendment rights. This court consolidated both appeals. We affirmed all of Garcia's convictions and reversed the district court's decision to grant Garcia's section 2255 petition. We remanded to the district court for the limited purpose of reimposing the mandatory 360-month sentence under 18 U.S.C. § 924(c)(1).
On remand, the district court reimposed the 360-month consecutive sentence and, upon recommendation from both parties, reduced the sentence on the narcotics convictions from 165 months to 151 months. Garcia then filed a notice of appeal.
Although not raised by the parties, this court will examine sua sponte the application of the recent Supreme Court opinion in Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), to Garcia's conviction under 18 U.S.C. § 924(c)(1). Because controlling authority has made a contrary decision of law applicable to this issue, we conclude that Garcia's conviction should be overturned.
A. Law Of The Case Doctrine
The application of the law of the case doctrine presents a significant question that must be addressed prior to applying Bailey to Garcia's conviction. In Merritt v. Mackey, 932 F.2d 1317 (9th Cir. ...