IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50440
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL DON ROLLS,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
USDC No. A-96-CA-392 (A-94-CR-42)
February 12, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
The petitioner plead guilty to several offenses, including
using and carrying a firearm during and in relation to a drug
trafficking crime, 18 U.S.C. § 924(c)(1). He received 60 months in
prison on the firearms charge, to be served consecutively with 108
months on the other counts. He did not file a direct appeal, and
appears before us on a 28 U.S.C. § 2255 habeas petition alleging
that there was an insufficient factual basis to support his plea.
*
Pursuant to Fifth Circuit Rule 47.5, the court has
determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
According to a factual basis form filed with the plea
agreement, the United States was prepared to show that Rolls and a
companion abducted and pistol-whipped Rolls’s former girlfriend.
After police located and questioned Rolls, Rolls told police that
the gun used in the assault was in his room. The officers entered
the room and found a .380 caliber semi-automatic pistol rather than
the .38 caliber revolver that they had expected. They also found
ammunition and pills amounting to over 15 pounds of a mixture
containing Methaqualone, a schedule I controlled substance.
Rolls filed his petition after Bailey v. United States, 516
U.S. 137, 150 (1995), alleging that he could not stand convicted
under either the “use” or “carry” prong of § 924(c). Ordinarily,
Bailey claims are subject to a procedural bar, absent certain
exceptions, that would prevent Rolls from raising such a claim. See
Bousley v. United States, 118 S. Ct. 1604, 1610-11 (1998). The
government, however, did not invoke the procedural bar in the
district court. The Supreme Court has made clear that the Court of
Appeals is not required to invoke a procedural bar sua sponte. See
Trest v. Cain, 118 S. Ct. 478, 480 (1997). The Supreme Court left
open the possibility that the Court of Appeals might be permitted
to invoke a procedural bar sua sponte. See id. We decline to
consider that question here, following instead our traditional
practice of requiring the government must invoke a procedural bar
in the district court lest it be waived. See United States v.
Drobny, 955 F.2d 990, 995 (5th Cir. 1992).
2
The magistrate judge determined that Rolls could not be
convicted under the “use” prong, but that sufficient evidence
established that he “carried” a firearm. The district court
independently reviewed the record and accepted the magistrate
judge’s report, denying § 2255 relief. The reasoning was that
Rolls was the sole occupant of the vehicle when he drove to the
motel, and that it was reasonable to deduce that Rolls knew of the
presence of the weapon in the vehicle and knowingly carried the
weapon during and relation to a drug trafficking crime. This court
granted Rolls’s motion for a certificate of appealability.
We cannot be sure that Rolls transported the weapon in his
vehicle or that he carried it to his motel room. “The plain and
ordinary meaning of the term ‘carry’ demands some showing that the
defendant touched, moved or transported the gun.” United States v.
Wainuskis, 138 F.3d 183, 191 (5th Cir. 1998); see also Muscarello
v. United States, 118 S. Ct. 1911, 1919 (1998); United States v.
Hall, 110 F.3d 1155, 1161 (5th Cir. 1997). Perhaps someone else
transported the gun and Rolls merely knew of its presence. But the
conclusion that Rolls did transport the gun is certainly an
inference that a jury might have made, given the combination of the
reports about pistol-whipping and his knowledge of the presence of
the gun in the motel room.1
1
Rolls complains that when he entered his plea, the law in the
Fifth Circuit allowed a conviction under § 924(c) merely because a
defendant was in close proximity to a firearm, and that he would
not have pleaded guilty had he understood the narrower scope of
that section. However, a defendant who fails to predict a
favorable evolution of the law is not entitled to plea anew. See
Brady v. United States, 397 U.S. 742, 756 (1970) (“Absent
3
It is not our role to reevaluate the evidence de novo. We can
reverse the district court only if it committed clear error in
concluding that there was an adequate factual basis for the plea.
See United States v. Sanders, 157 F.3d 302, 304 (5th Cir. 1998).
Identifying an adequate factual basis does not require a certainty
that a jury would have convicted on the evidence, and certainly we
cannot conclude here that the district court clearly erred in
finding an adequate factual basis.
AFFIRMED.
misrepresentation or other impermissible conduct by state agents,
a voluntary plea of guilty intelligently made in the light of the
then applicable law does not become vulnerable because later
judicial decisions indicate that the plea rested on a faulty
premise.”) (citation omitted). In addition, Teague v. Lane, 489
U.S. 288 (1989), does not apply. See Bousley, 118 S. Ct. at 1610.
4