United States v. Palmer

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
)))))))))))))))))))))))))) Clerk

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

11
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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