UNITED STATES COURT OF APPEALS
For the Fifth Circuit
_______________________
No. 98-40524
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAURICIO MARTINEZ JR.,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(M-92-CR-12)
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June 7, 2000
Before DAVIS, DUHÉ and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Mauricio Martinez, Jr. (“Martinez”)
appeals the district court’s order denying his motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255. We
find no error and affirm.
I.
In 1991, agents with the Drug Enforcement Administration,
searched Martinez’ residence and adjoining property and arrested
him. Some of the items seized during the search of the property
were: 357 pounds of marijuana, a .32 caliber H & R Mag revolver, a
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
.380 Colt revolver, a 12 gauge Remington shotgun, weighing scales,
packaging tape, cellophane wrapping, and a currency counterfeiting
device. Agents also found, parked on the property, Martinez’s 1986
Cadillac containing a .9mm Baretta revolver.
Martinez pleaded guilty to one count of conspiracy to possess
with intent to distribute marijuana and one count of using and
carrying a firearm in relation to a drug offense, a violation of 18
U.S.C. § 924(c). Martinez was sentenced to 100 months in prison on
the former count and five years in prison on the latter count; the
sentences were imposed consecutively.
Martinez filed, but then withdrew, a notice of appeal. More
than one year after the conviction and sentence, Martinez filed the
instant § 2255 motion. Martinez alleged that his plea was
involuntary because he “did not understand the nature of the
charge” and because he was not guilty under Bailey v. United
States, 516 U.S. 137 (1995). He also argued that he was denied
effective assistance of counsel.
The magistrate recommended denying the motion. The magistrate
judge concluded that Martinez was “carrying” a weapon in his
vehicle and home and that his guilty plea to using and carrying a
firearm in relation to a drug offense was thus based on ample
factual support. The district court adopted the report and
recommendation of the magistrate judge. A timely notice of appeal
was filed. The district court granted a certificate of
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appealability solely on the Bailey issue.
II.
Relief under 28 U.S.C. § 2255 is reserved for transgressions
of constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice. United States v.
Acklen, 47 F.3d 739, 741 (5th Cir. 1995). In reviewing a district
court’s denial of a § 2255 motion, this court examines the factual
findings for clear error and conclusions of law de novo. United
States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).
Martinez did not file a direct appeal. The failure to
challenge his conviction on direct review ordinarily would preclude
Martinez from bringing this collateral action absent a showing of
either: (1) cause and prejudice or (2) actual innocence. Bousley
v. United States, 523 U.S. 614, 622-23, 118 S.Ct. 1604, 1611, 140
L.Ed.2d 828 (1998). The Government, however, has waived this issue
by failing to raise it in the district court. See United States v.
Drobny, 955 F.2d 990, 995 (5th Cir. 1992).
Section 924(c)(1) is violated when a defendant “during and in
relation to any crime of violence or drug trafficking crime ...
uses or carries a firearm ....” 18 U.S.C. § 924(c)(1). Martinez
argues that his conviction under § 924(c) should be vacated because
he did not “use” or “carry” a firearm for purposes of § 924(c). We
conclude that the instant case is controlled by our analogous
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decision in United States v. Ramos-Rodriguez, 136 F.3d 465 (5th
Cir. 1998).
In Ramos-Rodriguez, the defendant appealed the denial of his
§ 2255 motion challenging the factual basis, under Bailey, for his
guilty plea to one count of using and carrying fourteen guns during
and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1). 136 F.3d at 466. The government presented no
evidence indicating the location of the firearms in defendant’s
home at the time of the arrest. Id. at 467. Nevertheless, this
Court held that there was a sufficient factual basis for
defendant’s plea of guilty to carrying a firearm in violation of §
924(c)(1). Id. at 468. This Court observed that: (1) defendant
made an express admission that he “carried” a firearm during and in
relation to a drug trafficking offense, and (2) defendant admitted
that he carried the firearms “in order to protect and guard the
heroin and cocaine” in his residence and that he carried the
firearms “during and in relation to his possession” of the drugs.
Id. Accordingly we concluded:
[i]t cannot be emphasized enough that it is
the defendant’s admissions during the plea
colloquy which are pivotal. Had this case
been tried to a jury without the defendant’s
testimony, the mere presence of guns in the
residence would be insufficient to establish
“carry” under § 924(c). See, e.g., United
States v. Wilson, 77 F.3d 105, 110 (5th Cir.
1996). But here, the defendant admitted to
carrying firearms during and in relation to
the drug trafficking crimes to which he also
pleaded guilty. Nothing within the factual
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resume or plea colloquy in this case would
cause a court to question the defendant’s
candor or knowledge with respect to the crimes
to which he pleaded guilty.
Id. at 469
Martinez made a similar express admission at his rearraignment
hearing that he owned the Cadillac and that he had put the Baretta
firearm in the vehicle. Martinez also admitted that the purpose of
the Baretta in the Cadillac was to protect himself and the
marijuana during drug trafficking and in case there was some
problem involving the marijuana. Moreover, this admission was
repeated in an affidavit filed, after the rearraignment hearing,
with the Probation Department. In this affidavit, Martinez stated:
... I, Mauricio Martinez, Jr. conspired with
Fernando Hernandez Aguilera and Alfredo
Vasquez to intentionally possess with intent
to distribute a quantity of marijuana of
approximately 470 pounds. I knew that
possession of that marijuana was illegal and I
fully intended to sell that marijuana also
knowing that was illegal. While and during my
involvement with this marijuana, I knowingly
carried or kept a 35 caliber Baretta pistol
and a Remington 12 gauge shotgun to protect
myself while I was involved with the 470
pounds of marijuana at the place where I was
arrested.
(emphasis added).
III.
Because of Martinez’ admissions that he “carried” the Baretta
and the Remington shotgun during and in relation to the drug
trafficking crime to which he pleaded guilty, we affirm his
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conviction and sentence on the firearm count.
AFFIRMED.
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