Revised October 28, 1998
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60130
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONALD SANDERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
September 30, 1998
Before KING, SMITH and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant Donald Sanders filed a petition for habeas relief
pursuant to 28 U.S.C. § 2255 alleging that the factual basis of his
guilty plea to using and carrying a firearm during and in relation
to a drug trafficking offense did not satisfy the Supreme Court’s
standard in Bailey v. United States, 516 U.S. 137 (1995). The
district court denied relief. We vacate and remand.
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FACTS AND PROCEDURAL HISTORY
Sanders pleaded guilty, pursuant to a plea agreement reached
midway through his jury trial, to using and carrying a firearm
during and in relation to a drug trafficking crime in violation of
18 U.S.C. § 924(c), as well as several drug trafficking offenses.
The factual basis for the guilty plea was stated as follows by the
government during the guilty plea proceedings:
On April 3rd, 1991, Agent Craig Taylor and other
agents obtained a search warrant for the residence where
Donald Sanders lived based on information that he had
cocaine and crack cocaine at that location. They
executed the search warrant. Agent Taylor had
information that Sanders sometimes kept cocaine base
hidden outside the house. So he checked the outside of
the house and found a path leading from Sanders’
residence to the adjoining house which was a vacant
house. He obtained -- the agent obtained permission from
the owner of that residence to search that residence.
Underneath the residence there was a door where it
was boarded up underneath the house which was off the
ground, he opened that little door, and underneath there
the agent found a Sunbeam bag containing Pringles Potato
Chip can. Inside the Pringles can, Agent Taylor found
41.47 grams of cocaine base, 21.4 grams of cocaine
powder. The Pringles bag was checked for prints, as well
as other bags, and Sanders’ fingerprints was found on the
Sunbeam bag.
There was a pistol located with the cocaine
underneath the house. It was a FIE .38 caliber pistol,
the same serial number as described in the indictment.
It was there available and accessible to protect the
cocaine for Mr. Sanders and was there for no other
apparent purpose than in connection with the drug
trafficking.
Sanders confirmed the accuracy of the prosecutor’s statement.
The court found there was a factual basis for Sanders’ guilty pleas
and that they were informed and voluntary. Sanders was sentenced
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to the minimum guideline sentence of 235 months followed by the
statutorily mandated consecutive 60 month sentence for the firearm
violation. Ten remaining counts were dismissed.
Sanders appealed his conviction and sentence. His trial
counsel filed a brief in accordance with Anders v. California, 386
U.S. 783 (1967), which did not raise his current objection to his
§ 924(c) conviction. This court determined the appeal had no issue
of “arguable merit” and dismissed it with an unpublished opinion.
United States v. Sanders, No. 92-7781 (5th Cir. May 4, 1993).
On January 22, 1996, Sanders filed a pro se 28 U.S.C. § 2255
motion arguing that his firearm conviction under § 924(c) was
unsupportable under Bailey v. United States, 516 U.S. 137 (1995).
The district court relied on another Mississippi district court’s
opinion which held, “By admitting that he moved a firearm from one
location to another location to store it near drugs, a defendant
would have admitted guilt under the ‘carry’ prong of 924(c).”
United States v. Wainuskis, 942 F. Supp. 1101, 1105 n.1 (S.D.Miss.
1996). The district court concluded that the facts in Sanders’s
case mirror the facts in Wainuskis and, applying the logic of that
case, sustained Sanders’s sentence based on the “carry” prong of §
924(c).
STANDARD OF REVIEW
We review a district court’s denial of a § 2255 motion under
two standards. The factual finding that there is an adequate basis
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for the plea is reviewed for clear error. United States v. Rivas,
85 F.3d 193, 194 (5th Cir. 1996). We review the district court’s
conclusions of law de novo. United States v. Faubion, 19 F.3d 226,
228 (5th Cir. 1994).
ANALYSIS
Sanders’s judgment reflects that he pleaded guilty to and was
convicted for “use of a firearm during and in relation to a drug
trafficking crime.” (emphasis added). Sanders contends, and the
Government does not dispute, that the factual basis of Sanders’s
plea does not support a conviction for “use” under the analysis set
forth in Bailey. However, because Sanders pleaded guilty to an
indictment stating that he “did knowingly...carry and use a
firearm” the Government is only required to establish a factual
basis for one of the acts charged, i.e., the use prong or the carry
prong. See Turner v. United States, 396 U.S. 398, 420-21 (1970).
Thus, the challenged conviction may stand if the “carry” prong of
§ 924(c) is satisfied. Id.
Pursuant to the Supreme Court’s recent opinion in Bousley v.
United States, ___ U.S. ___, 118 S. Ct. 1604 (1998), a petitioner
can successfully petition for § 2255 relief after a guilty plea
only if: (1) the plea was not entered voluntarily or intelligently,
see id. at 1610-11, or (2) the petitioner establishes that he is
actually innocent of the underlying crime. See id. at 1611-12.
In Bousley, a petitioner collaterally attacked his § 924(c)(1)
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conviction pursuant 28 U.S.C. § 2255. See id. at 1608-09. Based
on the Supreme Court’s decision in Bailey v. United States, 516
U.S. 137 (1995) -- rendered following his guilty plea -- the
petitioner argued that his plea was not knowingly or intelligently
entered. See Bousley, 118 S. Ct. at 1609.
The Court refused to addressed whether the plea was entered
knowingly and intelligently, because Bousley had procedurally
defaulted by failing to challenge the validity of his plea on
direct review. See id. at 1610. In order to overcome this
procedural default, the Supreme Court required Bousley to show
cause and prejudice or to demonstrate his actual innocence. See
id. at 1611. Further, the Court ruled that Bousley was unable to
show cause for his default, rejecting Bousley’s claims that prior
to the Supreme Court’s decision in Bailey, a Bailey-type attack on
§ 924(c)(1) conviction was novel or futile. See Bousley at 1611.
Thus, the fact that the law was unsettled, or settled incorrectly
in petitioner’s circuit, did not excuse the petitioner’s failure to
directly attack the validity of his plea. See id.
Next, the Court articulated the standard for showing actual
innocence. “To establish actual innocence, petitioner must
demonstrate that, in light of all the evidence, it is more likely
than not that no reasonable juror would have convicted him.” See
Bousley, 118 S. Ct. at 1611 (internal quotation marks
omitted)(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). The
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Court distinguished actual innocence from mere legal insufficiency.
See Bousley, 118 S. Ct. at 1611. Moreover, the Court noted that
the Government could produce any admissible evidence of Bousley’s
guilt in order to sustain the underlying conviction -- not merely
the evidence presented during the plea colloquy. See id. at 1611-
12. With these standards established, the Court remanded the
action to allow Bousley the opportunity to establish his actual
innocence. See id. at 1612.
Like Bousley, Sanders failed to challenge the validity of his
guilty plea on direct appeal and has procedurally defaulted on the
challenge. In order to overcome this default, Sanders must
establish cause and prejudice or actual innocence. In the wake of
Bousley, Sanders’s cause and prejudice argument is foreclosed.
Sanders’s only remaining claim is that he is actually innocent of
the charged crime.
The Supreme Court in Bailey did not elucidate the meaning of
the word “carry.” See United States v. Harlan, 130 F.3d 1152, 1152
(5th Cir. 1997). However, in Muscarello v. United States, 118 S.
Ct. 1911 (1998), the Supreme Court held that “a person who
knowingly possesses and conveys firearms in a vehicle, including in
the locked glove compartment or trunk of a car,” carries that
weapon in violation of § 924(c). Muscarello does not control the
outcome of this case because there is no indication that Sanders
carried the gun in a vehicle. However, Muscarello informs our
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decision with extensive discussion of the congressional intent
behind the choice of the term “carry” in § 924(c). “Congress
intended to use the word in its primary sense.... ” Muscarello,
118 S. Ct. at 1914. See Webster’s Third New International
Dictionary 343 (1986)(first definition: “move while supporting (as
in a vehicle or in one’s hands or arms)”). Thus, “carry” is to be
construed broadly, see Muscarello, 118 S. Ct. at 1918, and is not
limited to situations where the firearm is “immediately
accessible.” Id. at 1919.
We conclude that Sanders’s conviction cannot be sustained on
the record before us under the “carry” prong of § 924(c). The
firearm was lying under a porch three feet from where Sanders hid
his cocaine. The evidence did not tie the gun to Sanders by
fingerprints, registration, testimony or admission. The evidence
is not sufficient to establish that Sanders had ever moved it in
any fashion. The district court’s finding that there was an
adequate factual basis in the record to support the guilty plea is
clear error. We therefore VACATE the district court’s denial of
Sanders’ § 2255 motion, and REMAND this matter to the district
court, pursuant to the dictates of Bousley, 118 S. Ct. at 1612, to
afford the petitioner and the Government the opportunity to present
any relevant evidence on the the issue of Sanders’s actual
innocence.
VACATED AND REMANDED.
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