203 F.3d 1143

CARTER, District Judge,
dissenting in part.
I concur with the majority’s opinion in Part I; however, I part company from the majority in their interpretation of Bailey v. United States. See 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). I feel the majority’s interpretation of “use,” as defined in Bailey, has been applied too narrowly. Bailey holds that a Section 924(c)(1) charge requires sufficient evidence to show an “active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.” 516 U.S. at 143, 116 S.Ct. 501. The Court also limited the scope of possible uses by finding that “use” does not encompass “mere possession,” simple “storage,” or the “inert presence,” of a firearm. Id. at 143-149, 116 S.Ct. 501 (stating that “ ‘use’ must connote more than mere possession” yet “silent but obvious and forceful presence of a gun on a table can be a ‘use’”). Use, then, must be more than mere storage, but can be less than brandishing, striking with, or firing a firearm. Id. at 148, 116 S.Ct. 501.
The tortuous history of this case reveals that the defendant explicitly admitted to “use” of a firearm at three separate plea hearings. On January 25, 1993, when entering his plea before Judge Robert E. Coyle, Defendant Guess swore that he was pleading guilty because he was, in truth and in fact, guilty of the charges. As set forth in the plea agreement and explained by the Court, a Defendant uses a firearm in relation to drug trafficking when:'
First, the defendant committed the crime charged in count one of the indictment; Second, the firearm at issue was related to or played some role in that crime; and Third, the defendant knowingly used or carried the firearm in committing the crime
In his plea, the Defendant admitted that he intended to manufacture methamphetamine and attempted to manufacture methamphetamine by renting a premises, setting up a laboratory, and acquiring chemicals to be used in the manufacture of methamphetamine. He also stated that he “possessed a Smith and Wesson, model 39, 9 mm pistol, serial number A614574 which he used to protect himself and his methamphetamine laboratory.”
On February 3, 1993, as a result of a dispute about the quantity of methamphetamine involved, the parties executed an amended plea agreement. This amended plea agreement was virtually identical to the January 25, 1993 agreement, except that the potential sentences for the quantity of methamphetamine were set forth in more detail. On February 8, 1993, the parties appeared before Judge Coyle to discuss Defendant’s penalties and sentence. For reasons unrelated to Defendant’s “use” of a firearm, the Court allowed the Defendant to withdraw his plea.
At the pretrial conference, on March 8, 1993, Judge Crocker accepted another change of plea from Guess. The written plea agreement was virtually identical to the original plea taken on January 25, 1993 and the amended plea on February 3, 1993. The plea agreement was identical to the original as it pertained to the “use” of the firearm. Once again, the explanation of the elements of the crime of using a firearm in relation to drug trafficking were set forth in the plea agreement and explained by the court exactly as it was on January 25,1993.
Federal Rule of Criminal Procedure 11 was not violated. Each trial judge developed an adequate factual history before accepting the separate pleas. Guess swore to possession and, most importantly, “use” of the firearm for the protection of his laboratory in his first, second, and third plea hearings. The District Courts, on three occasions and before two different judges, found that Guess brought the loaded weapon onto the balcony for “use to protect himself and his methamphetamine laboratory.” (emphasis added) I believe that we should give deference to these factual findings, the defendant’s repeated admissions of “use” and the expectation of all parties that this was truly a “use.”
Guess (1) drew a loaded revolver, (2) clicked the safety off, and (3) held it for the protection of his methamphetamine laboratory. These three actions do not equate to mere possession. The balcony where the gun was found was outside defendant’s sleeping quarters. The methamphetamine laboratory was located one floor below. Because the methamphetamine laboratory was located only one floor below defendant’s bedroom, I do not believe that he was simply protecting his residence and/or business. Guess heard noises, took his weapon out of the holster, and, with the gun in hand, went patrolling. Only when the authorities 'identified themselves did Guess drop the revolver. This revolver was found haded, with the safety off, ready to fire. By pulling the weapon out of the holster, he converted it to “use.”
Defendant’s “use” is more than “emboldening.” Narcotics dealers and manufacturers have to rely on self-help because they are subject to the same violence that they often perpetrate. “Rip offs” are a common phenomenon in the drug world. Obviously, Guess and other dealers and manufacturers cannot go to the police and complain of a crime or file a civil cause of action for return of narcotics. Rather, dealers and manufacturers must take matters into their own hands. As a result, Guess’s “use” of a gun demonstrated his obvious need to protect his narcotics. Unlike the innocent homeowner or, even a small drug dealer who would call out hoping to frighten the intruder away, manufacturers and dealers by virtue to their profitable trade, become targets or easy marks for other criminals. In order to protect themselves, dealers such as Guess feel the need to patrol and “use” weapons. Guess had approximately one kilogram of methamphetamine to protect. Guess did not call out because his intent was to surprise the intruder, who he may have believed was another criminal bent on “ripping him off’ from either his illegal monies and/or methamphetamine.
The majority argues that instead of “using” the gun, Guess was only carrying the gun. In Bailey, the Court found, in the consolidated petitions of Defendant Bailey and Defendant Robinson, that neither Defendant had “used” a firearm under Section 924(c)(1). See Bailey at 150-51, 116 S.Ct. 501 (remanding for consideration of the “carry” prong of Section 924(c)(1), which is not relevant to this Court’s analysis). The Court found no “active employment” of the gun when it had been placed inside a bag in the locked car trunk. See id. In Robinson’s case, the Court found no “active employment” when the “unloaded, bolstered” weapon “was found locked in a footlocker in a bedroom closet.” Id. (emphasis added). Unlike the Defendants discussed in Bailey, Guess used a loaded and unholstered weapon, which was retrieved from an unlocked night stand, when surprised by intruders. While the majority suggests that Guess was only “carrying” the gun when he removed it from the night stand, in my Opinion, he actively employed the gun when he loaded it and took the safety off so that the gun was not only prepared to fire, but activated to fire. The record is unclear as to whether the weapon was already loaded and taken from the night stand or it was loaded by the, defendant when he heard noises. Nonetheless, when a loaded weapon, with the safety off, is taken on patrol, the defendant has “used” the weapon, whether or not the weapon was initially in a loaded or unloaded condition.
With all due respect to the majority, the Court’s ruling may lead to the impression that only an actual confrontation will invoke “use” of a firearm. Guess should not escape a “use” enhancement simply because the police did not see him holding a weapon. The logical extension of this argument would be that there would then have to be a confrontation with an armed defendant in his home before we would find “active employment” of a firearm. In my opinion, “use” should not require an actual confrontation. By Guess’s movement, loading his gun and removing its safety, he has actively employed the weapon and not merely “stored” it. By finding that Guess has not “used” or actively employed the weapon, I fear the majority has interpreted the scope of the meaning of “use” too narrowly and therefore has moved us one step closer to a doctrine of “inevitable confrontation” as a predicate for “use.”

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