IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20776
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT WAYNE CAMERON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(H-94-CR-274-1)
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July 22, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
I.
Pursuant to a plea agreement, Robert Cameron pleaded guilty to
one count of a three-count superseding information stating the
following:
On October 25, 1994, Federal and local officers executed
a Search Warrant at the defendant’s home[.] . . . An ATF
officer went into defendant’s apartment and approached the
defendant in defendant’s bedroom and disarmed the defendant.
Defendant had in his possession, more specifically, behind his
*
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should not be published and is not precedent except under the limited circumstances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.
back, a Norinco, 9mm pistol, loaded with seven rounds.
After being advised of his constitutional rights, the
defendant verbally waived those rights and claimed the
Norinco and 2 other 9mm Linda model pistols as his own.
These two Linda model pistols were found in the defen-
dant’s bedroom closet along with two more firearms, an
FIE Model “Tex,” .22 caliber revolver, fully loaded with
six rounds and a Glenfield, Model 60, .22 caliber rifle.
Also found in the same closet was approximately four
pounds of Marihuana and ten Valium tablets. In and
around the above-mentioned articles were miscellaneous
boxes of ammunition, boxes of plastic baggies, a detecto
scale, a box of baking soda, and a drug smoking device
known as a “bong.” The defendant stated to the officers
that he was selling drugs to pay bills. The defendant
also stated that the guns were his.
The prosecutor recited an identical version of the factual basis at
Cameron’s plea hearing.
In the presentence report (“PSR”), the probation officer
indicated that, during his arrest, “Cameron was alleged to have
reached behind his back for a pistol in a threatening manner.” The
probation officer indicated that “Cameron denied hiding the weapon
or reaching for the gun in a threatening manner.” There were no
objections to the factual findings in the PSR; the district court
adopted those findings.
At Cameron’s pre-plea detention hearing, the magistrate judge
found that “Mr. Cameron resisted arrest by attempting to draw on
officers from the small of his back, a Norinco automatic pistol
loaded with seven rounds of ammunition in the clip[.]” At
Cameron’s sentencing hearing, the prosecutor referred to the
magistrate judge’s finding when arguing for a relatively stiff
sentence. Cameron’s attorney stated that he was not prepared to
argue the facts at sentencing but added, “There was a dispute
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between Mr. Cameron’s impression of what happened on the day of his
arrest and the ATF agent’s impression of what occurred on the day
of his arrest.”
II.
Cameron contends that his guilty plea lacked a factual basis
in light of Bailey v. United States, 116 S. Ct. 501 (1995), which
was decided after he entered his plea. The government confesses
error and concedes that it was not harmless. The government also
asks this court to allow it to reinstate the counts that were
dismissed in conjunction with Cameron’s plea agreement.
A district court must satisfy itself that there is a factual
basis for a guilty plea. United States v. Adams, 961 F.2d 505, 508
(5th Cir. 1992). Use of a firearm does not encompass possession of
a firearm or placement of it nearby for future active use. Bailey,
116 S. Ct. at 508-09. See United States v. Garcia, No. 95-20170,
1996 WL 316490, at *7 (5th Cir. June 12, 1996). Bailey applies to
cases pending on direct appeal when it was decided. United States
v. Andrade, 83 F.3d 729, 730 n.1 (5th Cir. 1996) (per curiam).
The factual basis stipulated in the plea agreement and recited
at the plea hearing is inadequate to satisfy the use requirement of
Bailey. Cameron had a firearm behind his back; the factual basis
does not indicate that he brandished, displayed, bartered, fired,
or attempted to fire the weapon or struck anybody with it or used
it for barter. See Bailey, 116 S. Ct. at 508. The mere presence
of the firearm, even if close enough for easy access by Cameron,
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does not constitute “use.” Id.
It is not evidence, on the record now before us, whether the
firearm was on Cameron’s person or was actually behind him. If the
firearm was in the small of his back, as the magistrate judge
indicated, he could be convicted of carrying a firearm during a
drug-trafficking offense. See United States v. Fike, 82 F.3d 1315,
1328 (5th Cir. 1996).
The lack of a factual basis to support a guilty plea may
constitute harmless error. Adams, 961 F.2d at 512. We may rely on
a PSR to determine that a district court’s error regarding the lack
of a factual basis is harmless. Id. at 512-13.
In Cameron’s case, the PSR indicated that it was alleged that
he attempted to pull the weapon from behind his back, not that he
actually did so. Cameron disputed that allegation. At the
sentencing hearing, he again disputed the prosecutor’s allegation
and magistrate judge’s finding at the detention hearing that he had
attempted to pull the weapon from behind his back.
The district court made no finding regarding this. Because
the PSR stated the episode in terms of an allegation and not as
fact, Cameron disputed it, and the district court made no factual
finding, we do not rely on the PSR to determine that the Bailey
error regarding use of a firearm was harmless.
Additionally, the evidence on which the magistrate judge
relied to find that Cameron actually attempted to pull the weapon
is not included in the record. Accordingly, we will not rely on
the magistrate judge’s finding to hold that the Bailey error
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regarding use of a firearm was harmless.
Because there was an inadequate factual basis to support a
guilty plea of using a firearm, because the lack of a factual basis
does not constitute plain error, and because it is uncertain
whether there might be a factual basis to support a guilty plea of
carrying a firearm, we vacate Cameron’s conviction and remand for
further consideration in light of Bailey and Fike.
Finally, we need not determine now whether the government may
reinstate the counts of the indictment that were dismissed in
conjunction with Cameron’s plea. That issue is not ripe for
review. See Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.), cert.
denied, 115 S. Ct. 189 (1994).
VACATED and REMANDED.
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