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3d 354
This cause came on to be heard on the transcript of record from the United
States District Court for the Eastern District of New York and was argued.
The defendant, Luqman Salaam, was arrested on May 19, 1995, following a
high-speed chase in which police pursued a vehicle, allegedly driven by
Salaam, that was observed leaving the vicinity of an armed bank robbery in
Queens, New York. Suspecting that the car's occupants were involved in the
robbery, the police pursued the car for some time before the vehicle lost control
and crashed. At this point, two men fled from the vehicle. One of the men,
Christopher Collins, was apprehended; the other escaped and remains
unidentified. Salaam stayed in the car and was taken into police custody.
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Following a jury trial in the District Court for the Eastern District of New York
for his alleged role as the getaway driver in the armed bank robbery, the
defendant was convicted of conspiracy to commit bank robbery in violation of
18 U.S.C. 371 and armed bank robbery in violation of 18 U.S.C. 2113(a),
(d). The Government had also brought two charges against the defendant
pertaining to the weapon discovered in the leather bag, and he was convicted on
one of these charges--using or carrying a firearm in connection with a violent
crime in violation of 18 U.S.C. 924(c). He was subsequently sentenced to a
prison term of 156 months, 96 months for the robbery and conspiracy
convictions and 60 months for the 924(c) firearms charge. In calculating this
sentence, Judge Gleeson rejected the defendant's request for a downward
departure based on his physical impairment. See U.S.S.G. 5H1.4 (authorizing
downward departure in cases where defendant suffers from "extraordinary
physical impairment").
Following the trial, Salaam moved to set aside the jury's verdict on the 924(c)
charge. In a hearing before Judge Gleeson on March 12, 1996, the defendant
argued that, in light of the Supreme Court's intervening decision in Bailey v.
United States, 116 S.Ct. 501 (1995), the court's instructions to the jury on the
924(c) charge were erroneous and, under the correct standard as defined by
Bailey, there was insufficient evidence to convict him for using or carrying a
firearm under 924(c). The court rejected these arguments, and the defendant
now appeals, asking this Court to set aside his conviction under 924(c). He
also challenges the district court's refusal at sentencing to make a downward
departure based on his physical disability. We address these claims in turn.
The defendant argues, first, that Judge Gleeson's jury instruction on the
924(c)(1) charge was erroneous in light of the Supreme Court's decision in
Bailey. While we agree that the instruction is inconsistent with the holding in
Bailey, we conclude that this error was harmless.
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