United States v. Ramos-Rodriguez

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-11590

THE UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

CANDIDO RAMOS-RODRIGUEZ,

Defendant-Appellee.

Appeal from the United States District Court
For the Northern District of Texas
March 16, 1998

Before JOLLY, DUHE’, and PARKER, Circuit Judges.

PARKER, Circuit Judge:

The United States appeals from the district court’s order

granting in part Appellee Candido Ramos-Rodriguez’ motion to

vacate, set aside and correct sentence pursuant to 28 U.S.C. § 2255

and the district court’s final judgment setting aside the

conviction for carrying a firearm during and in relation to a drug

trafficking crime. Finding error, we reverse.

BACKGROUND

On March 10, 1992, the Government filed a criminal complaint

against Rodriguez, his wife, and four other individuals alleging
fourteen counts of drug trafficking offenses. On April 3, 1992,

Rodriguez pleaded guilty to a four-count information charging him

with one count of possession with intent to distribute heroin and

one count of possession with intent to distribute cocaine, both in

violation of 21 U.S.C. § 841(a)(1), 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), and one count of laundering

drug proceeds exceeding $350,000, in violation of 18 U.S.C. § 1956.

He was sentenced to 120-month concurrent terms of imprisonment on

each of the drug and money laundering counts and a 60-month

consecutive term of imprisonment on the gun count.

After the time to appeal expired, Rodriguez filed a motion to

withdraw his guilty plea on the gun count, which was denied.

Rodriguez appealed, and a panel of this court dismissed Rodriguez’s

appeal without prejudice to his right to file a section 2255

motion.

On March 21, 1994, Rodriguez filed a section 2255 motion

alleging ineffective assistance of counsel and challenging the

voluntariness and factual basis for his guilty plea. The

magistrate judge recommended that the motion be dismissed with

prejudice. Although Rodriguez filed objections to the magistrate

judge’s report, the district court adopted the magistrate judge’s

report and recommendation and dismissed the motion with prejudice.

Rodriguez filed a timely notice of appeal.

On March 1, 1995, this court vacated the district court’s

judgment dismissing Rodriguez’s section 2255 motion and remanded

2
for a determination as to whether any factual basis existed for

Rodriguez’s claim that his counsel was ineffective for failing to

initiate an appeal on his behalf. After the case was remanded,

Rodriguez filed a second section 2255 motion raising the sole claim

that his §924(c)(1) conviction should be set aside because the

factual basis underlying the conviction was insufficient in light

of Bailey v. United States, 116 S. Ct. 501 (1995).

The district court consolidated the two section 2255 motions.

Following an evidentiary hearing, the magistrate judge recommended

denying Rodriguez’s ineffective assistance of counsel claim, but

granting Rodriguez’s motion with respect to the Bailey claim. Both

sides filed objections, but the district court adopted the report

and recommendation of the magistrate judge. Thus the district

court set aside Rodriguez’s conviction and vacated the sentence on

the gun count. The Government filed a timely notice of appeal.

ANALYSIS

Because Rodriguez filed both section 2255 motions prior to

April 24, 1996, the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA) does not apply to his claims. Lindh v. Murphy, 117

S. Ct. 2059 (1997); United States v. Carter, 117 F.3d 262, 264 (5th

Cir. 1997). Accordingly, pre-AEDPA law governs, and the court need

not address whether the Government is required to obtain a

certificate of appealability to appeal the grant of section 2255

relief.

In reviewing challenges to district court decisions under 28

U.S.C. § 2255, we examine the findings of fact for clear error and

3
conclusions of law de novo. United States v. Thompson, 122 F.3d

304, 306 (5th Cir. 1997).

The Government argues that the district court erred in

granting in part Rodriguez’s section 2255 motion on the ground that

the factual basis for his guilty plea was inadequate to support his

conviction for carrying a firearm during and in relation to a drug

trafficking crime. Although Rodriguez was neither charged with nor

convicted of conspiracy, the Government maintains that he carried

the firearm in relation to the drug trafficking conspiracy as set

forth in the factual resume. The Government argues that the

district court erred in disregarding Rodriguez’s express admission

in the factual resume that he carried the firearms in order to

protect and guard the heroin and cocaine he stored in his

residence.

The Government further argues that the district court erred by

implicitly holding that Bailey changed the law governing the

“carrying” prong of § 924(c)(1). Alternatively, the Government

contends that the district court erred by failing to dismiss

Rodriguez’s second § 2255 petition as an abuse of the writ and in

failing to apply a plain error standard of review to Rodriguez’s

challenge to the factual basis of his guilty plea.

A. Uncharged Predicate Offense

On March 10, 1992, law enforcement agents executed a search

warrant on Rodriguez’s home in Lubbock, Texas. As a result of the

search, the agents discovered heroin, cocaine, and fourteen guns

throughout the house. No further details are contained within the

4
factual resume to indicate the precise location of the firearms in

Rodriguez’s home.

The Government first argues that the district court erred by

reviewing only whether Rodriguez “carried” a firearm during and in

relation to the drug trafficking crimes made the basis of Counts 1

and 2 of the Information--possessing heroin and cocaine on March

10, 1992, with the intent to distribute same. According to the

Government, the district court should have reviewed whether

Rodriguez “carried” a firearm during and in relation to the overall

drug trafficking conspiracy he admitted to in his factual resume,

even though the defendant was never charged with conspiracy in the

Information.

Rodriguez argues that conspiracy cannot serve as the predicate

offense for the gun count because he was never charged with

conspiracy.1 Section 924(c)(1) establishes criminal liability for

a defendant using or carrying a firearm during and in relation to

any crime of violence or drug trafficking crime “for which he may

be prosecuted.” 18 U.S.C. § 924(c)(1) (emphasis added). This court

has recognized that the statute does not require an underlying

conviction. See United States v. Munoz-Fabela, 896 F.2d 908, 910-

11 (5th Cir.), cert. denied, 498 U.S. 824 (1990)(drug charge

contained in the indictment which had been dismissed). It is the

“fact of the offense, and not a conviction, that is needed to

1
It is important to note that Rodriguez does not challenge the
sufficiency of the factual resume to support a conspiracy
conviction. In his brief he only argues that failure to charge him
with conspiracy is fatal to the government’s case.

5
establish the required predicate.” Id. at 911. Moreover,

acquittal of the predicate offense does not preclude conviction

under § 924(c)(1) when there is ample evidence showing that a

reasonable jury could have found the defendant guilty of the

predicate offense. United States v. Ruiz, 986 F.2d 905, 911 (5th

Cir.), cert. denied, 510 U.S. 848 (1993).

In United States v. Wilson, 884 F.2d 174, 176 n.2 (5th Cir.

1989), this court upheld a defendant’s conviction on a one-count

indictment for carrying a firearm during and in relation to a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1). In that

case, the predicate drug trafficking offense was possession of a

controlled substance with intent to distribute, 21 U.S.C. §

841(a)(1). Prior to trial, the defendant pleaded guilty in state

court to aggravated possession of a controlled substance. Because

the district court held that the guilty plea in state court was

insufficient to establish all the elements of possession of a

controlled substance with intent to distribute under the federal

statute, the government was required to present additional evidence

on the predicate drug trafficking offense at trial. Although the

court did not directly address the issue, it was implicit that the

government’s failure to charge the defendant with the predicate

offense was not fatal to the government’s case.

The aforementioned cases and the language of the statute might

lead a court to conclude that the Government’s failure to charge

Rodriguez with conspiracy is not dispositive. However, there is

one key problem in reaching such a conclusion--with respect to the

6
gun count, the Information specifically charges Rodriguez with

using and carrying firearms “during and in relation to a drug

trafficking crime, that is, possession with intent to distribute

Heroin and Cocaine, in violation of Title 21, United States Code,

Section 841(a)(1), as charged in Count 1 and 2 of this Information

and for which he may be prosecuted in a court of the United

States.” Count 3 - Information, p.3 (emphasis added). The

Government cannot now argue that conspiracy was the predicate

offense when it specifically charged that possession with intent to

distribute, and no other offense, was the predicate for the gun

count.

Because the Government specifically stated the predicate

offense for the gun count as an offense previously charged in the

Information, the court need not address whether an uncharged

predicate offense can be sufficient to satisfy § 924(c)(1).

B. Factual Resume and “Carry”

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). In

Bailey, the Supreme Court held that with respect to “use” under §

924(c)(1), a conviction requires evidence sufficient to “show

active employment of the firearm” by the defendant. Bailey, 116 S.

Ct. at 506. The Court defined “use” as including “brandishing,

displaying, bartering, striking with, and most obviously, firing or

attempting to fire, a firearm.” Id. at 508. The Government

7
concedes that it cannot satisfy Bailey with respect to the “use”

prong of § 924(c). The only issue is whether the conviction can

stand under the “carry” prong. The Bailey decision does not alter

the understanding of criminal liability for “carry” under § 924(c).

See United States v. Thompson, 122 F.2d at 306.

This court previously has articulated the meaning of “carry.”

“Carry” involves some dominion or control, but connotes more than

mere possession. Id. at 307. In a non-vehicle context, “carrying”

requires a showing that the firearm was in reach during the

commission of and in relation to the predicate offense. United

States v. Hall, 110 F.3d 1155, 1161-62 (5th Cir. 1997).

Rodriguez’s factual resume indicates the following to support

his conviction for carrying a firearm during and in relation to a

drug trafficking crime: First, and most importantly, Rodriguez

made an express admission that he “carried” a firearm during and in

relation to a drug trafficking offense. Rodriguez argues that he

merely was reciting the language of the statute. However, the

court will not disregard such an important piece of evidence merely

because the term “carry” is contained in § 924(c)(1). “Carry” also

has a plain meaning, and the defendant’s use of the term in his

factual resume will not easily be discounted, especially when there

are no other statements in the factual resume which conflict with

his admission or otherwise cause a court to question the

defendant’s veracity.

Further, Rodriguez admitted that he carried the firearms “in

order to protect and guard the heroin and cocaine” in his residence

8
and that he carried the firearms “during and in relation to his

possession” of the drugs. Factual Resume ¶5. Rodriguez admitted

that from on or about January 1, 1990, through March 10, 1992, he

used drug proceeds to purchase the firearms he used and “carried”

during and in relation to a drug trafficking crime and that he

purchased these firearms “in order to conceal and disguise the

nature, location, source, ownership and control of the Drug

Proceeds.” Factual Resume ¶8(i)(c), ¶9(ii).

It 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 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. The court finds that

there was a sufficient factual basis to support the guilty plea.

Because of these admissions, the court is satisfied that at

some point during and in relation to this drug trafficking crime,

the firearms were within Rodriguez’s reach, dominion or control and

that he “carried” the firearms pursuant to § 924(c)(1). Thus his

conviction and sentence on the gun count must stand.

C. The Government’s Alternative Arguments

9
 Due to our conclusion, we need not address the government’s

alternative points on appeal.

CONCLUSION

For the foregoing reasons, we conclude that there is a factual

basis for Rodriguez’s plea of guilty to carrying a firearm in

relation to a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1). Accordingly, we REVERSE the district court’s order

setting aside Rodriguez’s conviction and vacating his sentence on

the gun count.

10