United States v. Garcia

81 F.3d 166

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. UNITED STATES of America, Appellee, v. Ronald Gregory GARCIA, also known as Anthony Degeena, also known as Anthony Geena, also known as Vincent Vereli, also known as Eric V. Variel, Appellant.

No. 95-2186.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 7, 1996. March 25, 1996.

Before BEAM, LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

1

Ronald Gregory Garcia pleaded guilty to aiding and abetting (1) the possession of cocaine with intent to distribute, and (2) the use of a firearm during and in relation to a drug trafficking offense, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B), and 18 U.S.C. §§ 2 and 924(c)(1). While Garcia's appeal was pending, the Supreme Court issued its decision in Bailey v. United States, 116 S.Ct. 501 (1995), defining the "use" prong of § 924(c)(1), and Garcia then filed a supplemental brief arguing that his guilty plea to the firearm count was not voluntary and intelligent because it was based upon the Eighth Circuit's prior, inconsistent construction of § 924(c)(1). Because the government has now conceded that "the gun count should be reversed in this case," we vacate Garcia's guilty plea and remand for further proceedings. We have not considered and take no position regarding whether the government on remand may amend Count Two of the indictment.

2

Accordingly, the judgment of the district court is vacated and the case remanded.