33 F.3d 823

PELL, Circuit Judge,
dissenting.
Despite the disclaimer of the possibility of this court itself affirming on a Pinkerton theory, the net effect of the majority opinion is that, upon remand, the district court having already expressed itself on the Pinkerton theory, a judgment will be entered on the gun count and the fifteen month sentence for the distribution count on a guilty plea will be followed by a sixty month sentence for violating § 924(e). Because it appears to me that the net result of the remand will be a miscarriage of justice, I respectfully dissent.
Perhaps, as the majority opinion states, “the district court did not make any ‘subsidiary findings’ on the Pinkerton theory,” the thinking of that court was that:
he became a willing participant, a co-conspirator in the criminal adventure: — so, on a Pinkerton theory, even if he did not know that the gun was there, he became criminally responsible for it.
Yet, the district judge refrained from resting guilt on Pinkerton. Instead, the court rested its decision on a credibility determination and decided that the government had met its burden of producing sufficient evidence to prove that Chairez knowingly possessed the firearm. The majority opinion correctly disagrees and states that the government did not meet its burden of proving knowledge on the part of Chairez.
Likewise, the government, neither in the district court nor in its appearance in this court, chose to pursue in any meaningful way affirmance on the basis of Pinkerton. Essentially, in argument before this court, the government’s argument was based on direct personal liability on the gun count. The majority opinion succinctly and correctly states: “and the government on appeal was so chary of defending a Pinkerton rationale that there is certainly a substantial case for waiving of the point.”
The applicability of Pinkerton to the facts of this case would have seemed so evident to the government and, indeed, the district court, that one wonders why it was not used. Although this was never advanced as a reason, indeed no reason was articulated, it seems clear to me that the reason should have been based on what occurred prior to the evidentiary trial.
There were three counts: 1) that Chairez and others did conspire to distribute approximately 20 pounds of marijuana, 2) that he engaged in its distribution, and 3) that he did knowingly use and/or carry a firearm while engaged in the distribution. Ultimately, a partial plea agreement was negotiated. Pursuant to its terms, Chairez agreed to plead guilty to count 2, the distribution charge, in return for the government’s agreement to dismiss the conspiracy charge. Pursuant to this agreement, the conspiracy charge was dismissed.
The linchpin, without which Pinkerton is inoperative, is that there must be a conspiracy. It may well be, as the majority opinion states, that the absence of a conspiracy charge does not preclude a district court from applying a Pinkerton theory to the gun charge if the evidence so suggests. This is not the situation here. The conspiracy count was in the criminal complaint. It was removed from the proceeding pursuant to a plea agreement. To give good faith to that agreement, it should not be brought in by the back door as the essential component that it is.
With the volume of criminal litigation in the courts today, and given the priority it •has, plea bargaining is an essential ingredient in orderly and prompt disposition of cases. If the plea agreement is not given full effect, there enters, or could enter, a lack of good faith on the part of the government. That the government and the district court have refrained from relying on Pinkerton, which is inapplicable without the essential ingredient of conspiracy, is, I would like to think, because of the factor of good faith, even though they have not so indicated. Chairez should not be subject to a substantially enhanced sentence because of an element that supposedly had been removed from the case.
For the reasons stated herein, I would reverse and set aside the district court’s judgment holding Chairez guilty of a violation of § 924(c).

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