UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30882
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WILLIAM CARTER,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
July 8, 1997
Before WIENER, PARKER, Circuit Judges, and LITTLE,* District Judge.
PER CURIAM:
William Carter (“Carter”) appeals the district court’s denial
of his 28 U.S.C. § 2255 motion, arguing that under the Supreme
Court’s decision in Bailey v. United States, -- U.S. --, 116 S. Ct.
501, 133 L. Ed. 2d 472 (1995), his conviction for use of a firearm
in connection with the commission of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1), should be reversed. We agree
and reverse the conviction.
*
District Judge of the Western District of Louisiana, sitting by
designation.
FACTS AND PROCEEDINGS BELOW
Pursuant to a plea agreement, Carter pleaded guilty in 1992 to
conspiracy to possess with intent to distribute cocaine and to use
of a firearm in connection with the commission of a drug
trafficking crime. He did not plead to, nor was he charged with,
the statute’s alternative, that is, carrying a firearm in
connection with the commission of a drug trafficking crime.
At the plea hearing Carter affirmed the following version of
the facts as presented by the Government, and such is the totality
of the facts presented at the plea hearing regarding the location
and use of the firearm.
The United States would show that throughout the
aforedescribed drug trafficking offense, a Ruger
semiautomatic pistol, model P-85, 9 millimeter,
bearing serial No. 30598514, was located in the
passenger compartment of the defendant’s, William
Carter’s, automobile. The United States would
introduce evidence to show that both defendant
Carter and Fennidy had access to the weapon, and
that defendant Fennidy was the lawful owner of the
handgun....
In 1996, Carter filed a § 2255 motion arguing that under
Bailey, the facts did not support his § 924(c)(1) conviction for
“use” of a firearm in connection with a drug transaction. The
district court relied on its findings in Carter’s driving
companion’s (Keith Fennidy’s) § 2255 action that the firearm was on
top of the car’s console and was therefore used in the drug
transaction in that it was “displayed.” The district court denied
Carter’s § 2255 motion.
The district court entered its final judgment on May 14, 1996
and Carter filed a notice of appeal on June 3, 1996. He proceeds
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in forma pauperis, arguing that under Bailey, there was an
insufficient factual basis upon which to accept his guilty plea.
The district court did not consider the notice of appeal as a
request for a certificate of appealability (“COA”) and thus never
granted or denied a COA.
DISCUSSION
A. The COA after Lindh
As an initial matter, we must address the applicability of the
COA requirement created by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, in
light of the Supreme Court’s decision in Lindh v. Murphy, -- U.S.
--, -- S. Ct. --. -- L. Ed. 2d --, 1997 WL 338568 (June 23, 1997).
In Lindh, the Supreme Court held that AEDPA’s amendments to the
chapter of Title 28 which includes, inter alia, the COA
requirement, apply only to cases filed after the AEDPA’s effective
date. “[T]he new provisions of chapter 153 generally apply only to
cases filed after the Act became effective.” Lindh, 1997 WL
338568, at *8.
The AEDPA amended 28 U.S.C. § 2253 to require a COA before an
appeal may proceed in a § 2255 or a § 2254 action. By deciding
that the chapter containing the new COA requirement applies only to
cases filed after the AEDPA’s effective date, Lindh overruled our
previous holdings in United States v. Orozco, 103 F.3d 389 (5th
Cir. 1996), and Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996),
cert. denied, -- U.S. --, 117 S. Ct. 1114, -- L. Ed. 2d -- (1997),
and their progeny, regarding the applicability of the COA
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requirement to § 2254 and §2255 appeals. Following Lindh, we hold
that § 2255 appellants are not subject to this COA requirement
unless their § 2255 petitions were filed in the district court
after the AEDPA’s effective date of April 24, 1996. Because
Carter’s § 2255 petition was filed in the district court prior to
the AEDPA’s effective date, Carter is not subject to the COA
requirement.1
B. Carter’s Conviction after Bailey
Having determined that Carter need not have a COA as a
prerequisite to an appeal to this court, we must now consider
whether his conviction stands under a post-Bailey understanding of
“use” of a firearm in connection with the commission of a drug
trafficking offense. See 18 U.S.C. § 924(c)(1); United States v.
McPhail, 112 F.3d 197 (5th Cir. 1997) (holding that Bailey applies
retroactively to cases on collateral review).
A court cannot accept a guilty plea unless there is a
sufficient factual basis for the plea. United States v. Armstrong,
951 F.2d 626, 629 (5th Cir. 1992). The factual basis must appear
in the record and must be sufficiently specific to allow the court
1
Of course, in keeping with our evolved consistency of treatment
of the new COA requirement for both § 2254 and § 2255 actions, the Court’s
pronouncement in Lindh extends to § 2254 appeals as well. See, e.g.,
United States v. Youngblood, -- F.3d --, 1997 WL ------ (5th Cir. June 27,
1997) (making uniform the practice that a petitioner must apply to the
district court for a COA prior to making such a request of this court in
both § 2255 and § 2254 actions); see also Edwards v. United States, -- F.3d
--, 1997 WL 282509, *1 (11th Cir. May 30, 1997) (same); Lozado v. United
States, 107 F.3d 1011, 1016-17 (2d Cir. 1997) (same). Such consistency and
uniformity is the only logical approach for a sound, orderly practice for
this circuit. Thus, § 2254 litigation is also subject to the COA
requirement only when a § 2254 petition is filed in the district court
after the AEDPA’s effective date of April 24, 1996.
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to determine if the defendant’s conduct was within the ambit of
that defined as criminal. United States v. Adams, 961 F.2d 505,
508 (5th Cir. 1992); Armstrong, 951 F.2d at 629. The district
court’s acceptance of a guilty plea is a factual finding reviewable
under the clearly erroneous standard. Id.
Relief from a formal or technical violation of Rule 11 is not
available in a § 2255 collateral attack, but instead is available
only upon a showing of prejudice. Id. There is obvious prejudice
to Carter in entering a plea of guilty to a crime which, based on
the facts in the record, he did not actually commit. See Id.
2.
Carter was convicted of “using” a firearm and was not charged
with “carrying” a firearm in relation to a drug trafficking crime.
Thus, the requirements for “carrying” a firearm under § 924(c) do
not apply to Carter. See United States v. Garcia, 86 F.3d 394, 403
(5th Cir. 1996) (in applying Bailey, refusing to address whether
facts might have upheld conviction under “carry” prong of § 924(c)
because defendant was charged only with “use”), cert. denied, --
U.S. --, 117 S. Ct. 752, 136 L. Ed. 2d 688 (1997).
A conviction under § 924(c) requires that the defendant (1)
used or carried a firearm, (2) during and in relation to a drug-
trafficking offense. See 18 U.S.C. § 924(c). Prior to Bailey, §
924 was regarded as merely requiring evidence that the “firearm was
available to provide protection to the defendant in connection with
his engagement in drug trafficking.” United States v. Ivy, 973
F.2d 1184, 1189 (5th Cir. 1992). In Bailey, the Supreme Court
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reversed the § 924(c) convictions of two defendants, one of whom
had a gun in his car trunk and the other of whom had a gun in a
closet along with crack cocaine. The Court held that a conviction
for “use” of a firearm requires that the evidence be sufficient to
“show active employment of the firearm” by the defendant. Bailey,
116 S. Ct. at 506. The Court explained that “use” includes
“brandishing, displaying, bartering, striking with, and most
obviously, firing or attempting to fire, a firearm.” Id. at 508.
In addition, the “silent but obvious and forceful presence of a gun
on a table can be a ‘use.’” Id. However, “[a] defendant cannot be
charged under § 924(c)(1) merely for storing a weapon near drugs or
drug proceeds.” Id. “‘[U]se’ cannot extend to encompass [the]
action” of “conceal[ing] a gun nearby to be ready for an imminent
confrontation.” Id. at 508. The gun must be disclosed or
mentioned by the defendant. Id. In sum, in order to convict a
defendant for a § 924(c)(1) violation on a “use” theory, the
government must present evidence sufficient to show active
employment of the firearm. Bailey, 116 S. Ct. at 508-09. It is no
longer enough to show that the defendant merely stored a weapon
near drugs or drug proceeds to establish that the defendant used
the weapon during or in relation to drug trafficking activities.
Id.; McPhail, 112 F.3d 199.
3.
As previously stated, there must be a factual basis to support
a district court’s acceptance of a guilty plea, see Fed. R. Crim.
P. 11(f); United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.
6
1984), and as such, the proper approach is to review the district
court’s acceptance of a guilty plea for clear error.
At the plea hearing, the government offered that a
semiautomatic pistol “was located in the passenger compartment of
the defendant’s, William Carter’s, automobile” and that the
“defendant Carter...had access to the weapon.” No other facts
related to the firearm were recited. Under the Supreme Court’s
exposition of the statutory term “use” in Bailey, such a factual
basis is an insufficient basis for the acceptance of a guilty plea
to this offense since the mere location inside an automobile does
not, without more, equate with the “use” of a firearm in relation
to a drug trafficking offense. See McPhail, 112 F.3d at 199
(holding that insufficient under Bailey that weapon stored near
drugs or drug proceeds to establish “use”); United States v. Hall,
110 F.3d 1155, 1159-1161 (5th Cir. 1997) (holding that evidence
insufficient to sustain “use” conviction where firearm on floor of
room in which defendant was located, drugs were on table in room,
but no evidence that defendant disclosed, displayed, mentioned or
actively employed firearm in any way).
CONCLUSION
For the foregoing reasons, we conclude that there is not a
factual basis for Carter’s plea of guilty to the use of a firearm
in relation to a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1). When a plea has been accepted in violation of Rule
Fed. R. Crim. P. 11(f), our practice is to reverse, vacate and
remand for entry of a new plea. See Hall, 110 F.3d at 1162.
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Accordingly, the judgment of the district court is REVERSED,
Carter’s 18 U.S.C. § 924(c)(1) conviction is REVERSED, his sentence
is VACATED, and this case is REMANDED for further proceedings.
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