United States v. Andrade

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-20339
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,

vs.

JUAN ANTONIO ANDRADE,
Defendant-Appellant,

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Appeal from the United States District Court
for the Southern District of Texas

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May 14, 1996

Before: SMITH, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM.

In this direct appeal from his conviction and sentence, Juan
Antonio Andrade seeks to vacate his guilty plea to one count of

use of a firearm during and in relation to drug trafficking crimes,

in violation of 18 U.S.C. § 924(c)(1), on the ground that an

intervening Supreme Court decision interpreting that statute,

Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L.Ed.2d 472

(1995), renders the factual basis of his plea insufficient to

support his conviction.

Andrade was charged by superseding indictment with one

count each of conspiring to possess cocaine with intent to
distribute, in violation of 21 U.S.C. §§ 841 and 846; aiding and

abetting the possession with the intent to distribute cocaine, in

violation of 21 U.S.C. §§ 841 and 2; knowing use of a firearm

during and in relation to these drug trafficking offenses, in

violation of 18 U.S.C. § 924(c)(1); and knowing possession of a

firearm affecting interstate commerce by an illegal alien, in

violation of 18 U.S.C. § 922(g)(5). On January 19, 1995,

Andrade pleaded guilty to all four counts. He was sentenced on

April 13, 1995, to a total of 228 months imprisonment and five
years of supervised release, including a consecutive term of

imprisonment of 60 months for the use of a firearm charge, as

required by § 924(c)(1). On May 1, 1995, Andrade filed a timely

notice of appeal of his conviction and sentence.

The factual basis supporting the conviction for violating 18

U.S.C. § 924(c)(1) established that during a consent search of

Andrade's residence, police found a .357 magnum revolver

under a mattress in the bedroom, approximately six to eight feet

from the closet in which a stash of cocaine was hidden. At the
time of his plea, these facts adequately supported a conviction

for the firearm offense in this circuit. See, e.g., United States v. Willis, 6

F.3d 257, 264-65 (5th Cir. 1993); United States v. Mora, 994 F.2d

1129, 1140-41 (5th Cir.), cert. denied, U.S. , 114 S. Ct. 417,

126 L.Ed.2d 363 (1993).

While this appeal was pending, the Supreme Court decided

Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L.Ed.2d 472

(1995). In that case, the Court held that a conviction for use of

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a firearm requires a showing "that the defendant actively

employed the firearm during and in relation to the predicate

crime." Id. at 509. As the Court observed, "[a] defendant cannot

be charged under § 924(c)(1) merely for storing a weapon near

drugs or drug proceeds. Storage of a firearm, without its more

active employment, is not reasonably distinguishable from

possession." Id. at 508. The factual basis for Andrade's plea

clearly establishes no more than mere possession and, under

Bailey, is insufficient to support a conviction for use of a firearm in
relation to the predicate drug offenses.1 Indeed, the Government

concedes that the factual basis in the record is inadequate under

Bailey and that the appropriate remedy is to vacate Andrade's

conviction on count 3 of the indictment.2

1
As this case comes before us on direct appeal, there is
no question regarding whether Bailey applies retroactively.
Harper v. Virginia Dep't of Taxation, U.S. , 113 S. Ct. 2510, 2516-
17, 125 L.Ed.2d 74 (1993); Griffith v. Kentucky, 479 U.S. 314, 328,
107 S. Ct. 708, 716, 93 L.Ed.2d 649 (1987). We note,
however, that whether the standards governing the
retroactivity of new rules of criminal procedure on collateral
review, as articulated in Teague v. Lane, 489 U.S. 288, 109 S. Ct.
1060, 103 L.Ed.2d 334 (1989), likewise apply to decisions
interpreting substantive criminal statutes is an issue that has
not been decided in this circuit. But see, e.g., United States v. McKie, 73
F.3d 1149, 1153 (D.C. Cir. 1996) (Teague's bar on retroactive
application of new rules of criminal procedure inapplicable to
case raising retroactivity of decision interpreting substantive
criminal statute); United States v. Dashney, 52 F.3d 298, 299 (10th
Cir. 1995)(Teague inappropriate to analyze retroactivity of "a
substantive non-constitutional decision concerning the reach
of a federal statute."); United States v. Woods, 986 F.2d 669, 676-77
(3rd Cir.)(retroactivity doctrine differs depending on whether
decision announces new rule of procedure or substantive law),
cert. denied, U.S. , 114 S. Ct. 90, 126 L.Ed.2d 58 (1993).
2
The Government apparently seeks no more than that this
case be remanded to the district court for resentencing so that
the Government may seek a two-level increase under the
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 A plea of guilty typically waives all non-jurisdictional defects

in the proceedings below. See, e.g., United States v. Miramontez, 995 F.2d

56, 60 (5th Cir. 1993); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir.

1993). Nonetheless, in this particular context, where intervening

law has established that a defendant's actions do not constitute

a crime and thus that the defendant is actually innocent of the

charged offense, application of this rule is misplaced. We have

previously permitted attacks on guilty pleas on the basis of

intervening decisions modifying the substantive criminal law
defining the offense. See, e.g., United States v. Knowles, 29 F.3d 947

(5th Cir. 1994)(vacating conviction under Gun Free School

Zones Act following circuit decision striking law as

unconstitutional); United States v. Presley, 478 F.2d 163 (5th Cir.

1973)(holding that district court abused discretion in denying

motion to withdraw plea based on intervening Supreme Court

decision that may have rendered factual basis of plea

insufficient); see also United States v. Lucia, 423 F.2d 697 (5th Cir.

1970)(en banc)(Supreme Court decisions establishing absolute
defense to charge applied retroactively to vacate plea on

collateral review)(affirming in part United States v. Lucia, 416 F.2d 920

(5th Cir. 1969)), cert. denied, 402 U.S. 943, 91 S. Ct. 1607, 29

L.Ed.2d 111 (1971). Similarly, courts have permitted guilty pleas

Sentencing Guidelines for possession of a firearm during a
drug trafficking offense pursuant to U.S.S.G. § 2D1.1(b)(1).
Although we agree remand is required, the particular relief
requested by the Government is not properly before us, and
we express no view on the appropriateness of altering the
Guideline range.
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to be withdrawn where the defendant pleaded guilty to

something that is not a crime. In United States v. Barboa, 777 F.2d

1420 (10th Cir. 1985), a defendant brought a motion to vacate

his sentence pursuant to 28 U.S.C. § 2255, alleging inter alia that

his guilty plea to a conspiracy charge was invalid because his

alleged co-conspirator was actually a government informant.

The court held that no indictable conspiracy existed where the

only parties were the defendant and government agents or

informants, and that the district court had abused its discretion
in denying an evidentiary hearing to determine whether the

person with whom defendant purportedly conspired was actually

a government agent. The court, moreover, observed that "[i]f

Barboa pled guilty to something which was not a crime, he is not

now precluded from raising this jurisdictional defect, which goes

'to the very power of the State to bring the defendant into court

to answer the charge brought against him.'" Id. at 1423 n. 3

(quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 2103,

40 L.Ed.2d 628 (1974). See also United States v. Ruiz-Del Valle, 8 F.3d 98
(1st Cir. 1993)(holding that defendant should have been allowed

to withdraw guilty plea post-sentence in part on basis that the

same district judge ruled that similar facts in co-defendant's case

did not constitute crime).

We note, moreover, that every circuit court to have

considered whether a defendant may withdraw his plea to a

violation of 18 U.S.C. § 924(c)(1) in light of Bailey's change in the

law has addressed this issue on the merits. See United States v. Garcia,

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1996 WL 128123 (8th Cir. March 25, 1996)(unpublished

disposition)(summarily vacating guilty plea on direct appeal on

basis of Bailey); United States v. Keebler, 78 F.3d 598 (10th Cir.

1996)(table), 1996 WL 84104 (10th Cir. Feb. 27,

1996)(remanding to trial court for reconsideration of plea in light

of Bailey); United States v. Abdul, 75 F.3d 327 (7th Cir. 1996)(on appeal

from denial of pre-sentence motion to vacate plea, finding the

factual basis supporting plea insufficient under Bailey and

remanding with instructions to vacate conviction and sentence
under § 924(c)(1)); United States v. Riascos-Suarez, 73 F.3d 616, 622-23

(6th Cir. 1996)(on appeal from denial of post-sentence motion to

withdraw plea, reassessing sufficiency of factual basis

supporting defendant's Alford plea to violation of § 924(c)(1) in

light of Bailey); see also Bell v. United States, F.Supp. , 1996 WL

109272 (E.D.Mo.. March 12, 1996)(vacating plea on § 2255

motion on grounds pre-Bailey misunderstanding of the law

rendered plea involuntary); United States v. Fletcher, F.Supp. ,

1996 WL 109782 (D.Kan. March 5, 1996)(permitting habeas
petitioner to attack plea on ground that factual basis did not

constitute a crime under Bailey and discussing cases); United States

v. McMillan, 914 F.Supp. 1387 (E.D.La. 1996)(permitting pre-

sentence withdrawal of plea on grounds that factual basis did not

support "use" of firearm in light of Bailey).

The factual basis of Andrade's plea does not establish his

"use" of a firearm within the meaning of 18 U.S.C. § 924(c)(1) as

interpreted by the Supreme Court in Bailey. Consequently, his

6
conviction on that charge cannot stand. We thus vacate

Andrade's conviction and sentence for violating § 924(c)(1) and

remand this matter to the district court for proceedings not

inconsistent with this opinion.

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