United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 04-21016
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UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
GLENN RAY PALMER,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARZA, PRADO and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Glenn Ray Palmer pleaded guilty to use of a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A) and possession with intent to distribute five
grams or more of cocaine base in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(iii). Palmer appeals, challenging the
sufficiency of the factual bases of his convictions.
I. Factual Background and Procedural History
On April 19, 2004, police officers arrested Palmer outside
his apartment in Houston, Texas. They then went to the
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apartment, where Rhonda Patterson, who identified herself as
Palmer’s girlfriend, provided consent to a search. An initial
search turned up 19 rocks of crack cocaine above the kitchen
sink, 24 rocks on top of the bedroom television, a firearm
holster, a .40 caliber Glock magazine, 50 rounds of Winchester
ammunition, 20 rounds of .40 caliber Federal ammunition and a
safe. The officers obtained Palmer’s consent to search the safe,
which they did. It contained an unloaded Lorcin .380 caliber
pistol and 23 rocks and a quarter “cookie” of crack cocaine. In
total, the apartment contained 17.6 grams of cocaine base.
On August 27, 2004, following his indictment, Palmer and the
government entered into a plea agreement. Its “Waiver of Appeal”
clause included the following:
The defendant waives the right to appeal the
sentence imposed or the manner in which it was
determined. The defendant may appeal only (a) the
sentence imposed above the statutory maximum; or (b) an
upward departure from the Sentencing Guidelines, which
had not been requested by the United States as set
forth in Title 18 U.S.C. § 3742(b). Additionally, the
defendant is aware that Title 28, U.S.C § 2255, affords
the right to contest or “collaterally attack” a
conviction or sentence after the conviction or sentence
has become final. The defendant waives the right to
contest his conviction or sentence by means of any
post-conviction proceeding.
The defendant, by entering this plea, also waives
any right to have facts that the law makes essential to
the punishment either (1) charged in the indictment or
(2) proven to a jury or (3) proved beyond a reasonable
doubt. The defendant explicitly consents to be
sentenced pursuant to the applicable Sentencing
Guidelines. The defendant explicitly acknowledges that
his plea to the charged offense(s) authorizes the court
to impose any sentence authorized by the Sentencing
Guidelines, up to and including the statutory maximum
2
under the relevant statute(s).
The same day, pursuant to Federal Rule of Criminal Procedure
11, the district court conducted a hearing at which Palmer
pleaded guilty. The following colloquy took place:
THE COURT: Where did you get the firearm?
THE DEFENDANT: Where did I get it?
THE COURT: Yes
THE DEFENDANT: Bought it off the street, sir.
THE COURT: Why did you have the firearm there in the
safe?
THE DEFENDANT: I really don’t even know. I wanted to
get rid of it because it didn’t work. I didn’t
have a clip for it. So, it was just sitting in
there really, to tell you the truth.
THE COURT: Well, were you dealing drugs out of that
apartment?
THE DEFENDANT: I was using drugs. No, not – no, sir,
not at the apartment, sir.
THE COURT: Where were you dealing the drugs?
THE DEFENDANT: On the streets. And I was using drugs.
I was an addict, sir.
THE COURT: Did you have the firearm to protect the
drugs?
THE DEFENDANT: No, sir.
THE COURT: Well, why did you have the firearm in the
safe?
THE DEFENDANT: Because there be kids in that house, and
I just put it up there because – so couldn’t
nobody get to it.
THE COURT: Well, why did you buy the firearm?
THE DEFENDANT: Why did I buy it? Protect myself.
On December 15, 2004, the district court sentenced Palmer to
144 consecutive months’ incarceration, 84 for the controlled
substances charge and 60 for the gun charge. Palmer timely
appealed.
II. Analysis
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On appeal, Palmer argues that the plea agreement and
colloquy do not provide a sufficient factual basis to support
either of his convictions. The government disputes this, and
also claims that Palmer’s appeal waiver bars our consideration of
his claims.
A. Appeal Waiver
As a preliminary matter, we must address whether the waiver
in Palmer’s plea agreement bars his appeal. Our review in this
regard is de novo. United States v. Baymon, 312 F.3d 725, 727
(5th Cir. 2002). A defendant may waive his statutory right to
appeal provided (1) his or her waiver is knowing and voluntary,
and (2) the waiver applies to the circumstances at hand, based on
the plain language of the agreement. United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005)(dismissing appeal of sentence as
barred by waiver).1 In determining whether a waiver applies, we
employ normal principles of contract interpretation. United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Given the
significance of the rights they involve, we construe appeal
waivers narrowly, and against the government. United States v.
Harris, 434 F.3d 767, 770 & n.2 (5th Cir. 2005) (citing United
States v. Somner, 127 F.3d 405, 408 (5th Cir. 1997)).
1
Although Bond dealt with a sentencing appeal, rather than
an appeal of conviction like Palmer’s, the case it cited, United
States v. McKinney, spoke in terms of appeal waivers more
generally (albeit also in the context of a sentencing appeal).
406 F.3d 744, 746 (5th Cir. 2005). Bond’s two-pronged test
applies here.
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Palmer argues that his waiver does not bar a direct appeal
of conviction. He claims that the second and third sentences are
limited to appeal of a sentence and the following two to
collateral attacks; neither, he asserts, apply to a direct appeal
of a conviction. The government does not, in truth, respond to
this argument. Rather, its briefing assumes that the plea
agreement constitutes a general waiver of all of Palmer’s appeal
rights. After reviewing the agreement itself and the
communication between the district court and Palmer, we disagree
with the government’s assumption.
The main waiver paragraph of the agreement, quoted above,
refers to sentencing appeals and collateral attacks. The first
question is whether the language barring a sentencing appeal bars
appeal of a conviction. We have rejected reading sentencing
appeal waivers that broadly in the past. See United States v.
Lopez, No. 05-50602, slip op. at 1 (5th Cir. May 26, 2006)(“The
waiver has no effect on his ability to appeal, or seek 28 U.S.C.
§ 2255 relief from, his conviction; the provision affects only
his ability to appeal, or seek § 2255 relief from, his
sentence.”). The government does not argue why this situation
calls for a contrary reading. The two main cases on which it
relies to enforce the waiver both involve appeals challenging
sentences, not convictions. See United States v. Melancon, 972
F.2d 566, 567 (5th Cir. 1992); United States v. Portillo, 18 F.3d
290, 291 (5th Cir. 1995). A defendant’s waiver of his right to
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appeal a sentence is just that: it does not also constitute a
waiver of his right to challenge a conviction.
Nor do the fourth and fifth sentences of the first paragraph
of the appeal waiver section of the plea agreement bar Palmer’s
direct appeal. They refer to a collateral attack on a sentence
or conviction. The government does not dispute that this appeal
is direct and not a collateral attack. Nor does the phrase “any
post-conviction proceeding” apply to a direct appeal.
Contextually, the phrase follows a sentence stipulating Palmer’s
awareness of his collateral-attack rights. Reading the phrase
broadly is inconsistent with our distinguishing between direct
appeals and post-conviction proceedings. See, e.g., United
States v. Johnson, 244 F.3d 134 (Table), 2000 WL 1901456 at *1
n.1 (5th Cir. 2000)(per curiam).
The second paragraph of the appeal waiver also does not bar
this appeal. That paragraph includes two stipulations: (1) a
waiver of Palmer’s right to have the facts supporting his
sentences charged in the indictment, proven to a jury or proven
beyond a reasonable doubt; and (2) a consent to be sentenced
pursuant to the Sentencing Guidelines. In neither paragraph do
we find reference to a waiver of a right to directly appeal a
conviction.
There are two lines in the plea hearing colloquy between the
district court and Palmer potentially suggestive of a general
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appeal waiver, but they ultimately fail to establish the
generality of Palmer’s waiver. Following direct questioning
regarding his waiver of sentencing appeals and collateral
attacks, the court asked Palmer: “Have you talked to your
attorney about giving up your right to appeal and giving up your
right to collaterally attack your sentence or judgment?” Palmer
replied: “Yes, sir.” The use of the phrase “right to appeal”
could be read broadly to include appeal of a conviction; but its
parallel placement to mention of the collateral attack suggests
it was a short-hand reference to the waiver of sentencing
appeals, especially given the fact that the phrase followed
specific questions about both explicit waivers. Given our duty
to construe appeal waivers narrowly, we read Palmer’s agreement
as having preserved his right to challenge his conviction.2
B. Adequacy of Factual Basis for Convictions
Palmer challenges the adequacy of the factual admissions to
support his convictions under both sections 924 and 841. Because
he raises this argument for first time on appeal, we review for
plain error. United States v. Marek, 238 F.3d 310, 315 (5th Cir.
2
Because we reject the government’s contention that the
waiver applies to the circumstances at hand, a necessary
condition for its enforcement, we need not reach the issue of
whether the waiver was knowing and voluntary. We also decline to
address the government’s attempts to distinguish cases cited by
Palmer for the proposition that this court has refused to enforce
appeal waivers where the stipulated factual basis did not
establish that the defendant was guilty of the crime charged.
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2001). This reviewing posture limits our power to correct errors
not objected to below, United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005); and we may not correct an error unless it is
plain and affects the substantial rights of the party raising the
issue. Id. If these conditions are met, we may exercise our
discretion “to notice a forfeited error but only if . . . the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
We address the adequacy of each charge in turn.
1. Adequacy of Factual Basis for Conviction Under § 924(c)
The gravamen of Palmer’s appeal is his conviction under
subsection 924(c)(1)(A), which provides an additional penalty for
the possession of a firearm in furtherance of a drug trafficking
crime. 18 U.S.C. § 924(c)(1)(A). The question is whether the
facts adduced in the plea agreement and colloquy suffice to
establish that Palmer’s possession of the Lorcin .380 pistol was
“in furtherance” of drug trafficking.
In United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir.
2000), this Court explained the meaning of this critical phrase.
Examining the statutory language and the legislative history
underlying it, we concluded that, for subsection 924(c)(1)(A)
purposes, possession of a firearm “is ‘in furtherance’ of the
drug trafficking offense when it furthers, advances, or helps
forward that offense.” Ceballos-Torres, 218 F.3d at 410-11.
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“Mere presence” of the weapon, by contrast, is not enough. Id.
at 414. We listed several factors helpful to courts determining
whether the possession of a weapon was “in furtherance”:
the type of drug activity that is being conducted,
accessibility of the firearm, the type of the weapon,
whether the weapon is stolen, the status of the
possession (legitimate or illegal), whether the gun is
loaded, proximity to drugs or drug profits, and the
time and circumstances under which the gun is found.
Id. at 414-15. Applying these factors to Ceballos-Torres’ case,
this court affirmed his conviction. We noted that the “weapon
was loaded and easily accessible in Ceballos’s apartment, and he
confessed to ownership of the firearm. It was possessed
illegally. And it was possessed in the apartment along with a
substantial amount of drugs and money.” Id. at 415.
The facts here are distinct from those in Ceballos-Torres.
Although there was ammunition scattered over Palmer’s apartment,
the gun itself was locked in a safe, and not loaded. Moreover,
none of the ammunition matched a .380 Lorcin pistol. While
Palmer’s gun was in the apartment with drugs as in Ceballos-
Torres, it was separated from much of them.3 The gun was in the
safe, Palmer claimed, to protect the children from it. In
Ceballos-Torres, we distinguished the firearm possession of a
drug trafficker who kept a firearm “otherwise locked and
3
Ceballos-Torres’ gun was accessible from the location of
both his substantial supply of cash and his far larger stash of
drugs (569.8 grams). Id. at 411.
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inaccessible” for hunting or target-shooting purposes from
possession in furtherance of drug trafficking. Id. at 415.
Palmer, to our knowledge, is no hunter or target (or even skeet)
shooter; but he kept his gun locked and unloaded. His case is
also distinguishable.
While the facts here are sufficiently different from those
in Ceballos-Torres to permit a different outcome, Palmer’s
responses during the plea colloquy necessarily preclude his
conviction under subsection 924(c)(1)(A). Palmer denied use of
the gun for trafficking. When asked why he kept it in the safe,
he first answered that he did not know why, adding he meant to
get rid of it. Later, when asked if he possessed the firearm to
protect the drugs, Palmer replied, “No.” The district court
again asked why he kept the gun secured in the safe, and Palmer
answered: “Because there be kids in that house, and I just put it
up there because – so couldn’t nobody get to it.” Three times
the district court inquired of Palmer why he possessed the gun,
and thrice he denied it was in furtherance of trafficking.
The last question the district court asked before dropping
the issue was why Palmer purchased the gun. He replied: “Protect
myself.” While this answer is not inconsistent with furtherance
of drug trafficking, it does not affirmatively establish that as
the reason for possession. Taken in context with the three
aforementioned denials, Palmer’s answer cannot establish that he
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understood the nature of the charge to which he was pleading
guilty. His colloquy with the district court amounts to an
admission of possession, but a denial of possession in
furtherance of drug trafficking. A denial of a critical element
of the charge cannot constitute a guilty plea. See McCarthy v.
United States, 394 U.S. 459, 461 (1969).
The government argues that Palmer’s admissions regarding the
gun are not credible. The substance of a guilty plea has a
special character. The plea is “more than a mere confession; it
is an admission that the defendant committed the charged
offense.” Taylor v. Whitney, 933 F.2d 325, 327 (5th Cir. 1991).
We consider plea colloquies “[s]olemn declarations in open court”
which “carry a strong presumption of verity.” United States v.
Adam, 296 F.3d 327, 333 (5th Cir. 2002)(quoting United States v.
Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001)). Our willingness
to accept plea agreements and colloquies as the factual bases for
convictions demands a corollary respect for the integrity of
their contents. Thus, in McCarthy, the defendant’s use of the
words “neglectful” and “inadvertent” during his plea colloquy to
characterize his actions barred acceptance of his guilty plea
because the required mens rea for the crime was knowing or
wilful. 394 U.S. at 461. The question is not one of the district
court’s belief of credibility but the plea words themselves.
Here they indicate a denial of Palmer’s possession of the Lorcin
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pistol in furtherance of drug trafficking, and cannot be accepted
as a guilty plea for that charge.
Because Palmer raises his lack of argument for the first
time on appeal, our determination that the district court erred
does not end the inquiry. To correct the district court’s error,
we must determine that it is plain and affects Palmer’s
substantial rights, then exercise our discretion to correct only
if the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Mares, 402 F.3d at
520.
A “plain” error is one which is clear under current law.
Russell v. Plano Bank & Trustee, 130 F.3d 715, 722 (5th Cir.
1997). The district court’s acceptance of a denial of guilt as a
guilty plea runs contrary to the understanding we demand in
defendants of the charges against them. “[T]he defendant must
possess ‘an understanding of the law in relation to the facts’.”
United States v. Guichard, 779 F.2d 1139, 1144 (5th Cir. 1986)
(quoting McCarthy, 394 U.S. at 466). Palmer appeared to
understand possession unrelated to his drug trafficking–mere
possession–as the punishable offense. Ceballos-Torres
establishes that this is a misunderstanding, and McCarthy
establishes that such a misunderstanding cannot be the basis for
a guilty plea.
For an error to affect substantial rights, “the defendant
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must show that the error ‘affected the outcome of the district
court proceedings.’” Harris, 434 F.3d at 774 (quoting Mares, 402
F.3d at 521)). The defendant must show a “probability
‘sufficient to undermine confidence in the outcome.’” Given that
the error here led to Palmer’s conviction on a charge otherwise
inapplicable, and that it added 60 months to his sentence, we
have little trouble determining that it affected Palmer’s
substantial rights.
Under plain error review, when an error is plain and affects
substantial rights, we may correct it only if it seriously
affects the fairness, integrity or public reputation of judicial
proceedings. Mares, 402 F.3d at 520. The integrity of the plea
bargaining system is “vital to our national system of criminal
justice.” United States v. Ashburn, 20 F.3d 1336, 1347 (5th Cir.
1994). Maintaining that integrity requires diligently policing
its failure to function properly. In Kennedy v. Maggio, we wrote
that a guilty plea based on a fear of a nonexistent penalty
“colors the fundamental fairness of the entire proceeding.” 725
F.2d 269, 273 (5th Cir. 1984)(determining that attorney’s advice
to defendant that death penalty available for charged crime
constituted ineffective assistance of counsel when penalty not,
in fact, available). We believe a guilty plea based on facts
precluding conviction has the same effect. Palmer’s conviction
under subsection 924(c) constituted plain error, and we reverse
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it.
2. Adequacy of Factual Basis for Conviction Under § 841
Palmer also argues that the factual basis for his conviction
under section 841 is insufficient, warranting vacation. In
relevant part, the statute criminalizes the possession of a
controlled substance–in this case crack cocaine–with intent to
distribute. 21 U.S.C. § 841(a)(1). Palmer asserts the plea
agreement and colloquy support only possession, not intent to
distribute.
Under certain circumstances, courts have considered the
possession of amounts of crack cocaine less than that found in
Palmer’s apartment sufficient to sustain a conviction for intent
to distribute under subsection 841(a). See United States v.
Kates 174 F.3d 580, 582-83 (5th Cir. 1999)(citing sister courts
and upholding conviction under § 841 where defendant possessed
19.7 grams of crack cocaine and federal agent testified to amount
“almost surely” being intended for distribution). The plea
agreement stipulated that the police found 17.6 grams of cocaine
base in Palmer’s apartment. Citing United States v. Hunt, 129
F.3d 739 (5th Cir. 1997), Palmer argues that this amount alone
will not suffice. In Hunt, the defendant’s possession of
approximately 8 grams of cocaine was insufficient, even when
combined with a razor, “blunts” and a gun hidden in a couch
without controlled substances, to support conviction under
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section 841. 129 F.3d at 743-45. Palmer’s amount of cocaine
base possessed falls between those in Kates and Hunt, but we need
not plot another point on the crack-possession curve today.4
Contrary to Palmer’s argument on appeal, his admissions in
the plea colloquy provide sufficient additional evidence of the
intent to distribute to warrant our upholding his conviction.
When asked by the district court whether he was dealing drugs
from the apartment, Palmer replied, “I was using drugs. No, not
– no, sir, not at the apartment, sir.” The court followed up,
asking where Palmer was dealing drugs. Palmer responded: “On the
streets. And I was using drugs.” Palmer asserts that these
responses do not establish that the crack found at the apartment
was intended for distribution. While some ambiguity may exist in
their meaning, we find no plain error in the district court’s
acceptance of these responses–combined with Palmer’s
possession–as together providing a sufficient factual basis for
conviction under subsection 841(a).
III. Conclusion
For the reasons above, we AFFIRM the district court’s
conviction of Palmer for possession with intent to distribute a
4
It is worth noting that both Kates and Hunt involved
challenges to convictions by juries, and thus a different
standard of review was applicable than is here.
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controlled substance under subsections 841(a)(1) and
841(b)(1)(B)(iii) and REVERSE its conviction of him for
possession of a firearm in furtherance of a drug trafficking
crime under subsection 924(c)(1)(A). We REMAND for resentencing
in accordance with this opinion.
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