The Supreme Court, in Bailey v. United States, ruled unanimously that in order to convict a defendant of “use” of a firearm during the commission of a drug trafficking offense pursuant to 18 U.S.C. § 924(c)(1), the government must show that the defendant “active[ly] employ[ed]” the firearm, not merely that the firearm was an “inert presence” at the scene of the offense. Several district courts confronted with post-Bailey habeas petitions have provided defendants with Pyrrhic victories: These courts have granted the habeas petition but then deemed this collateral success a material breach of the plea agreement and allowed the government to reindict the defendant on the charges it had dismissed previously.
This Note argues that a successful collateral attack is neither a breach of a defendant’s plea agreement with the government nor an act which requires rescission of the agreement due to impracticability. Rather, the successful collateral attack may have created a situation in which the purpose of the contract has been substantially frustrated for the government. The Note evaluates a government claim premised upon this notion, but concludes that the government is still not entitled to relief.