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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10400
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES ADOLPH KUBOSH,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
August 7, 1997
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:
In United States v. Kubosh, 63 F.3d 404 (5th Cir. 1995), we
affirmed a sentence enhancement based on narcotics possession
offenses. The Supreme Court subsequently vacated that opinion and
remanded for further consideration in light of Bailey v. United
States, 516 U.S. __, 116 S. Ct. 501 (1995). Kubosh v. United
States, 116 S. Ct. 1012 (1996).
In his notice of appeal from the district court to this court,
Kubosh stated that he appeals "from the judgment of conviction and
sentence in this matter." In his brief to this court, however,
Kubosh's statement of issues and argument contained references only

to sentencing enhancement matters. Kubosh did not challenge the
underlying convictions in this case.
On petition for a writ of certiorari, Kubosh contended, for
the first time, that the evidence was not sufficient to support his
conviction of using or carrying a firearm during and in relation to
a drug trafficking offense, in violation of 18 U.S.C. § 924(c), and
that the jury instructions regarding that count were erroneous.
Because Kubosh failed to challenge his conviction under §
924(c) in the district court, this court is limited to reviewing
his conviction for plain error. United States v. Knowles, 29 F.3d
947, 950 (5th Cir. 1994) (citing Fed. R. Crim. P. 52(b) ("Plain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.")).
The Supreme Court has recently clarified an appellate
court's power under Rule 52(b) "to correct errors that
were forfeited because not timely raised in the District
Court." United States v. Olano, 113 S. Ct. 1770, 1776
(1993). In Olano, Justice O'Connor explained that an
appellate court may exercise its authority under Rule
52(b) only if there is an "error," and the error is
"plain," and the plain error affects "substantial
rights." Id. at 1777-78. "Deviation from a legal rule
is 'error' unless the rule has been waived." Id. at
1777. An error is "plain" if it is "clear" or "obvious."
Id. Finally, in most cases, a plain error affects
"substantial rights" when it is "prejudicial." In other
words, it must affect "the outcome of the District Court
proceedings." Id. at 1778. Once these conditions have
been met, Rule 52(b) gives the Court of Appeals the
discretion to correct errors not brought to the attention
of a District Court. The Supreme Court has instructed us
on how to exercise this discretion: the Court of Appeals
should "correct a plain and forfeited error affecting
substantial rights if the error 'seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.'" Id. at 1779 (quoting United States v.
Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L.
Ed. 555 (1936)).
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Knowles, 29 F.3d at 950-951 (footnote omitted).
In Bailey, the Supreme Court rejected this Circuit's
interpretation of what constituted "use" under § 924(c). In the
instant case, the district court instructed the jury in accordance
with the now-rejected Fifth Circuit law:
The government is not required to prove that the
defendant actually fired the weapon or brandished it at
someone in order to prove "use," as that term is used in
these instructions. However, you must be convinced
beyond a reasonable doubt that the firearm played a role
in or facilitated the commission of a drug offense. In
other words, you must find that the firearm was an
integral part of the drug offense charged.
In Bailey, the Court held that a conviction for use of a
firearm requires a showing "that the defendant actively employed
the firearm during and in relation to the predicate crime."
Bailey, 116 S. Ct. at 509. Kubosh was arrested at his residence
immediately after a controlled delivery of chemicals to that
address. The three firearms that he was charged with "using" were
discovered during a search of a different residence on that same
date. There was no evidence that Kubosh actively used or employed
the firearms. Therefore, the factual basis for Kubosh's § 924(c)
conviction is insufficient, under Bailey, to support a conviction
for use of a firearm in relation to the predicate drug offenses.
Basing a conviction on an improper interpretation of a statute
is both "plain" and an "error" as Olano defines those terms. See
Knowles, 29 F.3d at 951. Furthermore, the conviction affected
Kubosh's "substantial rights" because the district court sentenced
him to five consecutive years for the § 924(c) conviction. It is
of no consequence that Bailey was decided after the proceedings in
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the district court concluded. Johnson v. United States, 117 S. Ct.
1544, 1549 (1997)( holding "where the law at the time of trial was
settled and clearly contrary to the law at the time of appeal[,] it
is enough that an error be `plain' at the time of appellate
consideration."). We therefore vacate Kubosh's conviction and
sentence for violating § 924(c) and remand for resentencing.
We again reject Kubosh's other contentions on appeal, for the
reasons stated in our prior opinion. See Kubosh, 63 F.3d at 404.
VACATED IN PART, AFFIRMED IN PART, and REMANDED FOR
RESENTENCING.
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