UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60742
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
CHRISTINE WAINUSKIS,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
April 9, 1998
Before GARWOOD, DUHÉ, and DEMOSS, Circuit Judges.
DUHÉ, Circuit Judge:
Defendant-Appellant Christine Wainuskis appeals the district
court’s denial of her 28 U.S.C. § 2255 motion to set aside her
judgment of conviction for violation of 18 U.S.C. § 924(c)(1)
because of a change in the law, resulting from a clarification of
the meaning of “use” of a firearm in Bailey v. United States,
U.S. , 116 S.Ct. 501, L.Ed.2d 472 (1995). For reasons that follow,
we affirm the district court’s denial of her motion.
I.
Following an investigation of her activities and a search of
the residence she shared with Joseph Materne (“Materne”), Christine
Wainuskis (“Wainuskis”) was indicted by a federal grand jury on
four counts involving drugs and weapons: conspiracy to possess
with intent to distribute; possession with intent to distribute;
knowing use or carrying of a firearm during or in relation to a
drug trafficking offense; and felon in possession of a firearm.
Officers found methamphetamine, scales, baggies, other items
associated with the packaging and distributing of illegal drugs,
and 27 guns during the search. Wainuskis was discovered in a
bedroom of her residence, lying on a bed with a loaded gun tucked
under the mattress. Her co-defendant, Materne, was seated near two
weapons, both of which were visible to the searching officers and
easily accessible to him.
In exchange for the government dropping charges of conspiracy
to possess with intent to distribute methamphetamine and of
possession with intent to distribute that drug, Wainuskis pled
guilty to the remaining two counts: violations of 18 U.S.C. 924
(c)(1)1 and 18 U.S.C. § 922(g) (felon in possession of a firearm).2
1
The pertinent portion of the statute reads as follows:
“Whoever, during and in relation to any crime
of violence or drug trafficking crime... uses
or carries a firearm, shall,...be sentenced to
imprisonment for five years... .”
2
The defendant had an earlier conviction for possession for
Sale of a Controlled Substance (methamphetamine) in California, for
2
She admitted that the underlying drug trafficking offense in her
violation of § 924(c)(1) was possession with intent to distribute
methamphetamine. After hearing the plea colloquy and reviewing the
Presentencing Investigation Report (“PSR”), the district judge
imposed the mandatory 5-year sentence for the violation of § 924
(c)(1). He departed downward from the sentencing guidelines on the
remaining count and assigned a 30-month sentence to run
consecutively.
Wainuskis moved to set aside her conviction and sentence for
the violation of § 924(c)(1), based on a change in the law
resulting from the clarification of “use” of a firearm in Bailey v.
United States, U.S. , 116 S.Ct. 501, L.Ed. 2d 472 (1995). The
district court referred the motion to a magistrate judge, who
determined that the gun confiscated from under Wainuskis’s mattress
at the time of her arrest was not “used or carried” in relation to
a drug trafficking offense as defined in Bailey and in United
States v. Andrade, 83 F.3d 729 (5th Cir. 1996). Initially, the
district court agreed with the magistrate judge’s recommendation to
vacate the conviction and sentence imposed for the violation of §
924(c)(1), concluding that, under Bailey, the record did not
establish a factual basis for such a conviction. Upon further
examination of the plea colloquy and the PSR, the district court
found that there was sufficient information to support Wainuskis’s
guilty plea and conviction and denied her motion.
which she was on probation at the time of her arrest for the
current offense.
3
Wainuskis appeals. She argues that the factual basis for her
plea establishes no more than mere possession and is insufficient
to support a conviction of “use.” The Government agrees that there
is an insufficient factual basis to support her plea to violating
the 18 U.S.C. § 924(c)(1) “use” prong under Bailey. It argues,
however, that the plea colloquy record sufficiently supports a
guilty determination under the unaffected “carry” prong of §
924(c)(1). We agree.
II.
Wainuskis’s guilty plea was taken under Rule 11 of the Federal
Rules of Criminal Procedure. Her appeal is properly before this
Court because we have ruled in Andrade, 83 F. 3d 729, 731 (5th
Cir.) that although
[a] plea of guilty typically waives all non-
jurisdictional defects in the proceedings
below... 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.”
Bailey’s clarification of “use” provides Wainuskis with
grounds to appeal her conviction and sentence.
We review a district court’s denial of a § 2255 motion under
two standards. Because “acceptance of a guilty plea is considered
a factual finding that there is an adequate basis for the plea,”
the standard of review of this matter is clear error. United
States v. Rivas, 85 F.3d 193, 194 (5th Cir. 1996), (citing United
States v. Adams, 961 F.2d 505, 509 (5th Cir. 1992)). We review the
court’s conclusions of law de novo. United States v. Faubion, 19 F.
4
3d 226, 228 (5th Cir. 1994).
III.
A.
In denying Wainuskis’s motion to set aside her conviction and
sentence imposed under a Rule 11 plea, the district court examined
both the facts available at the time of the plea colloquy and those
provided later by the PSR. According to the United States
Sentencing Commission, Guidelines Manual, § 6B1.1(c)(Nov. 1995),
when a dismissal of charges is part of a plea agreement, the court
“shall defer its decision to accept or reject” any plea agreement
“until there has been opportunity to consider the presentence
report.” The Government dismissed two counts against Wainuskis in
exchange for her guilty plea. The district court relied on both
the plea colloquy and PSR to find a factual basis to support her
guilty plea. Logically, it must examine the same information to
determine if there is a factual basis to set aside her conviction.
This Court has upheld the district court’s use of the PSR to
find an insufficient factual basis and to reject a plea agreement.
United States v. Foy, 28 F. 3d 464 (5th Cir. 1994). See also
United States v. Gulledge, 491 F. 2d 679 (5th Cir. 1974).3
Based on the U. S. Sentencing Guidelines and our
jurisprudence, the district court was correct in considering all
3
Although the plea colloquy did not establish a sufficient
factual basis for the defendants’ pleas, the district court could
develop an adequate record at the sentencing proceeding to sustain
the pleas. Gulledge, 491 F.2d at 679.
5
information at its disposal to determine that a factual basis for
Wainuskis’s guilty plea existed and to deny her motion to set aside
her conviction and sentence.
B.
Wainuskis argues that Bailey’s clarification of “use” in §
924(c)(1) requires the setting aside of her sentence and
conviction. “Use” under Bailey connotes more than mere possession
of a firearm by a person who commits a drug offense.4 The Bailey
Court held that the language, context and history of § 924(c)(1)
indicates that the Government must show “active employment” of the
firearms.5 Reviewing the language of the statute and Congressional
intent, the Court noted that nothing indicates that Congress, when
it provided the two terms “use” and “carry,” intended that they be
understood to be redundant. “We assume Congress used two terms
because it intended each term to have a particular nonsuperfluous
meaning. A firearm can be used without being carried and a firearm
6
can be carried without being used.”
In clarifying “use” the Court provided an illustrative list:
“brandishing, displaying, bartering, striking with and ... firing
or attempting to fire a firearm.”7 More importantly, the Court
noted that use cannot extend to encompass the action of an offender
4
U.S. , 116 S.Ct. at 506.
5
Id.
6
Id. at 507.
7
Id. at 508.
6
who has hidden a gun where he can grab and use it if necessary.8
Wainuskis’s plea colloquy established that she was in a back
bedroom during the search of her residence. A pistol was found
under a mattress within arm’s reach at the time that the search was
executed. The PSR indicated that Wainuskis was lying on the bed in
that bedroom and that the semi-automatic pistol was loaded. Under
Bailey, Wainuskis merely possessed the weapon and did not actively
employ it at the time of the search. She is correct in stating
that under the Bailey clarification of “use” she has not violated
§ 924(c)(1).
C.
Section 924(c)(1)constitutes one offense, but can be violated
in either of two ways: using or carrying. Bailey recognized that
the “carry” prong of § 924(c)(1) brings some offenders who would
not satisfy the “use” prong within the reach of the statute.9
This Court recently held that, because Bailey did not address
the “carry” prong of § 924(c)(1), it had no effect on prior
precedent analyzing this language. United States v. Rivas, 85 F.3d
193, 195 (5th Cir.) cert denied, U.S. , 117 S.Ct. 593 (1996);
United States v. Tolliver, 116 F.3d 120, 127 (5th Cir. 1997), cert.
denied, 1997 WL 592674 (U.S., Oct. 14, 1997); United States v.
Muscarello, 106 F.3d 636, 638 (5th Cir. 1997), cert. filed, 65 USLW
3728 (Apr. 18, 1997).10 Our “carry” jurisprudence, when vehicles
8
Id.
9
Id. at 509.
10
Muscarello recognized no change in prior precedent analyzing
7
are not involved, requires a showing that the gun was within arm’s
reach during the commission of the drug offense. Tolliver, 116
F.3d at 127, (citing United States v. Pineda-Ortuna, 952 F.2d 98,
103 (5th Cir. 1992)). We have stated that mere possession of the
firearm is insufficient to support a conviction under the “carry”
prong. Tolliver, 116 F.3d at 127; United States v. Hall, 110 F.3d
1155, 1161 (5th Cir. 1997).
In Pineda-Ortuno, we noted that nothing in the legislative
history of § 924(c)(1) suggests that the term “carry” should be
construed as having any meaning beyond its literal meaning. That
literal meaning we derived from Webster’s Third International
Dictionary, 353 (1966): “to move while supporting (as in a vehicle
or in one’s hands or arms:...sustain as a burden or load and bring
along to another place.” We also recognized that the “easy reach”
element arose from a judicial expansion of “carrying” in a non-
vehicle context. Pineda-Ortuno, 952 F.2d at 104. Earlier we
explained in U.S. v. Blankenship, 923 F.2d 1110, 1116 (5th Cir.
“carrying” prong at least where the gun is possessed in a motor
vehicle. There the defendant knowingly possessed a loaded pistol
in the glove compartment of his truck. The vehicle itself was used
as a means of carrying the weapon. [W]e observe[d] that what
constitutes “carrying” under § 924(c)(1) when the firearm is
possessed in the motor vehicle differs substantially from what
constitutes carrying a firearm on a person because the means of
carrying is the vehicle itself. 106 F.3d at 639, citing United
States v. Pineda-Ortuno, 952 F.2d 98 (5th Cir. 1992).
8
1991) that a person cannot be said to “carry” a firearm without at
least a showing that the gun is within reach during the commission
of the drug offense.11
More recently in U.S. v. Fike, 82 F.3d 1315 (5th Cir. 1996),
we reiterated the necessity of applying a literal meaning to
“carry,” again based on Webster’s definition. Although Fike
involved a vehicle, which satisfied the element of transportation,
the firearm was also within easy reach, thus sufficiently
supporting a jury finding of “carrying.” Most recently in U.S. v.
Thompson, 122 F.3d 304 (5th Cir. 304 (5th Cir. 1997), we held that
carrying involves moving or transporting the firearm in some manner
or bearing the firearm upon one’s person. It is clear that our
jurisprudence in a non-vehicle context requires both that the
weapon be moved in some fashion and that it be within arm’s reach
(readily accessible) for a violation of the “carry” prong of §
924(c)(1).12
11
Blankenship was found not to have violated the “carry” prong
of § 924(c)(1) because he was arrested some miles away from the
motel where he had hidden a gun under a mattress.
12
We recognize that the following phrasing is found in U.S. v.
Hall, 110 F.3d 938 (5th Cir.1997): “[W]e conclude that the
prosecution, to sustain a conviction under the ‘carry’ prong of §
924(c)(1), must show that the firearm was transported by the
defendant--or was within his reach-- during and in relation to the
predicate crime. The text of the decision, citing the Fifth
Circuit precedent discussed above, and the facts of Hall, however,
9
There is sufficient information before this Court to find that
Wainuskis’s conduct satisfies both the transportation and the ready
accessibility elements of the “carry” prong. According to the PSR,
Wainuskis, her mother, and Materne lived together in Petal,
Mississippi. During a five-month period beginning in January 1993,
officers searched the trash at the residence, finding numerous
labels and boxes for firearm accessories. At some point during
that time, Wainuskis’s mother moved out. Confidential informants
told the government that the defendants had possession of firearms,
based on what they had seen when they bought drugs from Wainuskis
and Materne.
The defendants moved to Ellisville, Mississippi around July
12, 1993, and a search warrant was executed there July 29, 1993.
Twenty-seven guns were found in the residence the two shared. A
semi-automatic pistol was seen on a stool next to Materne; a 9mm
assault pistol was observed within his reach. Officers discovered
Wainuskis lying on a bed with a loaded gun under the edge of the
mattress.
Wainuskis agreed at the plea colloquy that she was discovered
in a back bedroom and that the pistol was within arm’s reach at the
time the search was executed. She did not dispute, either, the
more specific PSR that described her as “lying in a bed in a rear
bedroom,... a loaded semi-automatic pistol lying in the edge of the
do not reflect that a carry violation is proved by either element.
It is clear that we require both transportation and ready
accessibility for a “carry” violation.
10
mattress between the mattress and the night stand.” She admitted
that the two had moved from Petal where they were drug trafficking
to Ellisville. She acknowledged that they had bought guns to
protect their drugs and that they had continued to sell drugs when
they moved to Ellisville. From both the PSR and the plea colloquy
we could infer that the defendants, in their move, took with them
the weapons they had acquired while in Petal to protect their
drugs. Because Wainuskis was not charged with using or carrying a
particular firearm, we could infer that the gun under the mattress
was one of those transported by the defendants and kept within
reach for Wainuskis to protect their drugs.
The findings and recommendations proposed by the magistrate
judge provide an additional link between Wainuskis, the weapon
under the mattress, and the transportation element of “carry.” He
found that “Wainuskis secreted under her mattress a loaded firearm
which was discovered during a search... .” In her traverse to the
Government’s response to her motion to set aside her conviction,
Wainuskis merely contested the application of pre-Bailey “use” to
her situation, not that she was the one who had hidden the weapon.
Pursuant to 28 U.S.C.§ 636(b)(1) she had 10 days in which to object
to specific findings of fact, but she did not.
In entering her guilty plea to a violation of § 924(c)(1),
Wainuskis admitted all the facts necessary to show that the gun was
”carried” within the context of our jurisprudence.13 Not only did
13
The record clearly indicates that Wainuskis possessed drugs
with an intent to distribute both when she lived in Petal and when
11
she acknowledge her proximity to a weapon she and Materne had
purchased to protect their drugs, but she also did not dispute that
she secreted that weapon under the mattress. Additionally, her
admissions indicate that there were guns present both in Petal and
in Ellisville. It is only logical to infer that she played a part
in their move from one residence to the other. Under our “carry”
jurisprudence, these facts are sufficient to support Wainuskis’s
guilty plea to a violation of § 924(c)(1) and a denial of her
motion to set aside her conviction.
D.
18 U.S.C. § 214 provides grounds to uphold Wainuskis’s
she moved to Ellisville. By its nature, this violation is an on-
going offense, rather than a one-time transaction. Likewise, it is
clear from confidential informants, narcotics agents, and
Wainuskis’s own testimony that guns played a part in the offense in
both locations. The obvious inference that the guns owned by
Wainuskis and Materne went with them as they transferred their base
of operations to Ellisville satisfies the § 924(c)(1) requirement
that the weapons violation occur during and in relation to a drug
trafficking offense. Despite the dissent’s assertion, it is clear
that Wainuskis moved, secreted, and positioned herself within arm’s
reach of the gun for the purpose of protecting the drugs she
possessed and intended to distribute.
14
18 U.S.C. § 2(a) reads:
12
conviction under both the “use” prong and the “carry” prong of §
924(c)(1) as an aider and abettor of Materne’s crime.15 That the
couple lived together and sold drugs together for a period of five
months indicates the type of on-going offense to which this
doctrine may be easily applied. In U.S. v. Williams,16 we stated
that, to be found liable for another’s criminal activity, an aider
and abettor must share in the criminal intent to use the firearm
Who ever commits an offense against the United
States or aids, abets, counsels, commands,
induces or procures its commission, is
punishable as a principal.
15
It is not necessary, as the dissent suggests, that Materne
be convicted of a § 924(c)(1) violation for Wainuskis to be guilty
as an aider and abettor. See, e.g., United States v. Pearson, 667
F.2d 12 (5th Cir. 1982)(upholding a conviction of aiding and
abetting when the charges against the other defendant were
dismissed) and United States v. Robins, 978 F.2d 881 (5th Cir.
1992)(holding that where one of the principals was acquitted the
other defendant’s conviction of aiding and abetting him was not
consequently reversed because sufficient evidence existed to find
aiding and abetting.) Materne’s withdrawal of his guilty plea to
§ 924(c)(1) is akin to a dismissal or an acquittal. Because we
find sufficient evidence of aiding and abetting on Wainuskis’s
part, Materne’s withdrawal of a guilty plea to § 924(c)(1) is of
little consequence.
16
985 F.2d 749, 754 (5th Cir. 1993).
13
during a drug trafficking offense. This requires that Wainuskis
have knowledge of the presence of firearms.17 She admitted that she
and her co-defendant purchased guns to protect themselves and their
drugs. Confidential informants told of seeing guns during their
drug deals with the two defendants. Wainuskis and Materne lived
together in a house where 27 guns were found.
Agents saw Materne seated in the kitchen with a gun visible
next to him on a stool and another loaded weapon visible within
arm’s reach. The open display of these weapons satisfies the
18
Bailey “use” requirement for his conviction under 924(c)(1).
Wainuskis’s conduct, her continued association with Materne in the
drug dealing scheme, indicates her intent to bring about the
success of the venture. It is evident that Wainuskis possessed
both the necessary knowledge,19 that weapons were available for
Materne’s use, and the intent to be convicted as an aider and
abettor in Materne’s crime.
As an aider and abettor, Wainuskis can also be found guilty of
a violation of the “carry” prong of § 924(c)(1). After Wainuskis’s
mother had moved from Petal, only Wainuskis and Materne remained in
that residence. They moved together to Ellisville. It is a
17
Id., p. 755.
18
The dissent’s comment that a weapon in plain view does not
equate to “use” according to Bailey seems directly contrary to the
Supreme Court’s illustration of “use” as “the silent but obvious
and forceful presence of a gun on a table.” 116 S.Ct. at 508.
19
See Id.
14
reasonable inference that one or the other had to move the guns
they were known to have possessed in Petal to their new residence
in Ellisville where 27 guns were found. Because there is no
evidence of any other occupants in the residence, it is also
reasonable to infer that one of the two placed the guns found with
Materne so that they were readily accessible to him and that one of
the two placed the gun found under the mattress where Wainuskis was
lying.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s
denial of Wainuskis’s motion to set aside her conviction and
sentence.
DENIAL AFFIRMED.
ENDRECORD
15
DeMOSS, Circuit Judge, dissenting:
Christine Wainuskis was arrested after officers executed a
search warrant at her residence. Officers found Wainuskis in a
bedroom lying on a bed. Either under the mattress (Rule 11
colloquy) or “lying in the edge of the mattress between the bed and
the night stand” (Presentence Report), officers found a Colt semi-
automatic pistol. Officers also found Wainuskis’ boyfriend
Materne, an indeterminate number of other people, a quantity of
drugs, and additional firearms in another part of the house. There
is nothing in the Rule 11 colloquy or the PSR that suggests drugs
were found in the bedroom. There is nothing in the Rule 11
colloquy or the PSR that suggests when or by whom the gun was
placed under the mattress. There is nothing in the Rule 11
colloquy or the PSR that suggests any particular drug transaction
was occurring any place in the house at the time police began the
search.
The government prosecuted Wainuskis and she pleaded guilty on
the theory that she “used” the Colt .38 caliber semi-automatic
pistol taken from under her mattress in violation of 18 U.S.C.
§ 924(c) by exercising “constructive possession” of the pistol to
protect her constructive possession of illegal drugs. Thus,
Wainuskis’ plea was premised upon exactly the type of “possession
with a floating intent to use” that was repudiated in United States
v. Bailey, 116 S. Ct. 501 (1995). Wainuskis filed this post-
judgment motion under 28 U.S.C. § 2255, asking for relief from her
16
plea.
On appeal, we all agree that Wainuskis’ plea cannot be
sustained upon the “use” theory that Wainuskis, the government, the
probation officer and the district court uniformly understood to be
the basis of Wainuskis’ plea at the Rule 11 hearing. The majority
opinion nonetheless proceeds to the conclusion that Wainuskis’ plea
should be sustained on the alternative basis that she “carried” the
Colt pistol found beneath her mattress or that she aided and
abetted Materne’s independent § 924(c) conviction. Because I
disagree with both the majority’s approach and the substance of its
conclusions, I respectfully dissent.
I.
Wainuskis’ guilty plea is based entirely upon the “use” prong
of § 924(c). Both the PSR, which describes her offense, and the
criminal judgment, which prescribes her guilt, limit Wainuskis’
offense to “using a firearm during and in relation to a drug
trafficking offense.” Neither of those documents purports to base
Wainuskis’ criminal liability upon the “carry” prong of § 924(c).
Likewise, the transcript of the Rule 11 hearing leaves no doubt
that the government’s prosecution and Wainuskis’ plea were based
upon pre-Bailey notions of § 924(c) liability. The government’s
theory, as expressed in the Rule 11 hearing, was that Wainuskis
“exercised constructive possession” of the Colt pistol at the same
time she was in constructive possession of drugs. Wainuskis’ plea
is consistent. When asked to explain the offense, she admitted to
17
“having drugs with guns,” and stated “I was in possession of
methamphetamine, and I had guns.” Wainuskis also stated that she
kept firearms, “among other reasons,” to protect her possession of
unlawful drugs.
When Wainuskis’ plea was taken, evidence that she kept a
firearm for protection related to her engagement in drug
trafficking was sufficient to establish a violation of § 924(c).
E.g., United States v. Ivy, 973 F.2d 1184, 1189 (5th Cir. 1992).
After Bailey, such evidence is no longer considered sufficient.
See Bailey, 116 S. Ct. at 508 (“placement for protection” is
indistinguishable from possession and is insufficient to establish
§ 924(c) liability); see also United States v. Thompson, 122 F.3d
304, 306 (5th Cir. 1997); United States v. Carter, 117 F.3d 262,
265 (5th Cir. 1997). Thus, it is patently apparent that Wainuskis
entered a plea to conduct that amounted to criminal “use” of a
firearm when her plea was accepted, but was rendered non-criminal
by the Supreme Court’s disposition in Bailey.
To allow Wainuskis’ plea to stand when premised upon conduct
that the Supreme Court later determined to be non-criminal offends
notions of traditional fairness and undermines the consensual
nature of Wainuskis’ plea. See United States v. Addonizio, 99
S. Ct. 2235, 2241 (1979); Davis v. United States, 94 S. Ct. 2298,
2304-05 (1974). When a case has been tried to a jury and may be
based upon either the “carry” prong or an impermissibly broad pre-
Bailey construction of the “use” prong, we have generally required
that the case be remanded for retrial on the “carry” prong alone.
18
United States v. Johnston, 127 F.3d 380, 404 (5th Cir. 1997),
petition for cert. filed, 66 U.S.L.W. __ (U.S. Jan. 24, 1998) (No.
97-7680); United States v. Brown, 102 F.3d 1390, 1401 (5th Cir.
1996), cert. denied, 117 S. Ct. 1455 (1997); United States v. Fike,
82 F.3d 1315, 1328 (5th Cir.), cert. denied, 117 S. Ct. 241 (1996).
The theory underlying cases such as Johnston, Brown, and Fike is
that the appellate record cannot disclose which of the two
alternative theories, the impermissible “use” theory or the
permissible “carry” theory, was made the basis of the defendant’s
conviction. Johnston, 127 F.3d at 404; Brown, 102 F.3d at 1400-01;
Fike, 82 F.3d at 1328. When that approach is applied to Wainuskis’
case, we find there is no confusion about the theory made the basis
of her conviction -- the government, Wainuskis, the probation
department, and the district court were all operating on the
assumption that Wainuskis’ conviction was to be based upon the
“use” prong of § 924(c). Where it is absolutely clear, as it is in
this case, that the conviction is based upon a legally erroneous
theory of prosecution, the principles articulated in those cases
require that the conviction be vacated for repleading or trial on
the permissible theory of liability.20
20
The breadth of the Court’s per se rule requiring reversal
was recently questioned in United States v. Wilson, 116 F.3d 1066
(5th Cir. 1997). Shortly thereafter, the Court voted to consider
en banc the scope of the per se rule requiring reversal as applied
to Alfred Brown, one of the defendants in United States v. Wilson.
United States v. Brown, 123 F.3d 213 (1997) (granting rehearing en
19
With respect to guilty pleas, the Court’s inquiry has
typically focused upon whether the defendant’s plea is supported by
a sufficient factual basis as required by Federal Rule of Criminal
Procedure 11. In making that determination, the Court has likewise
considered whether the “use” prong, the “carry” prong, or both,
banc). Our en banc consideration of Brown was cut short, however,
when the Supreme Court granted a petition for writ of certiorari in
United States v. Muscarello, 106 F.3d 636 (5th Cir. 1997), cert.
granted, 118 S. Ct. 621 (1997). In Muscarello, the district court
dismissed the defendant’s guilty plea to § 924(c), finding that the
factual basis for Muscarello’s guilty plea was a “pre-Bailey
composition” that could not properly be relied upon to establish
Muscarello’s post-Bailey liability on a different theory.
Muscarello, 106 F.3d at 638-39. On appeal, a panel of this Court
reversed, holding that the district court’s refusal to rely upon
the factual basis was error. Id. The Supreme Court promptly
granted a petition for writ of certiorari, and argument is
presently scheduled for March 23, 1998. The Supreme Court’s
disposition of this issue in Muscarello may well change our
understanding of the appropriate remedy in § 2255 cases raising an
argument that defendant’s conviction is based upon an impermissibly
broad definition of the “use” prong. If nothing else, that
possibility counsels against a hasty decision in this case that may
conflict with the Supreme Court’s ultimate disposition of the issue
in Muscarello and this Court’s disposition of related issues en
banc in United States v. Brown.
20
were made the basis of the plea. Where the defendant pleaded
guilty to both “using” and “carrying” a firearm, the Court has
rejected the conviction to the extent it is based upon a pre-Bailey
definition of “use,” but proceeded to evaluate the adequacy of the
evidence to support the defendant’s liability on the alternative
theory that he or she “carried” the firearm. E.g., United States
v. Hall, 110 F.3d 1155 (5th Cir. 1997). Where the defendant was
not charged with “carrying” a firearm or pleaded only to “using” a
firearm, the Court has refused to consider whether defendant’s
conviction can nonetheless be supported on the alternative “carry”
prong. E.g., Carter, 117 F.3d 262.
The record demonstrates that Wainuskis’ plea was premised
entirely upon a legally erroneous pre-Bailey definition of
§ 924(c)’s “use” prong. I would, therefore, vacate her conviction
and remand the cause to the district court for repleading or trial
on the “carry” prong of that statute.
II.
I also dissent from the majority’s conclusion that Wainuskis
“carried” the gun that the police pulled out from under her
mattress when her home was searched.
Wainuskis’ case is not novel. Prior to Bailey, prosecutors
relied heavily upon the liberal construction given § 924(c)’s “use”
prong. Since Bailey was decided, this Court has considered a
number of § 2255 motions requesting relief on the basis of the
dramatic change effected by the Supreme Court’s narrowing of that
21
oft-invoked statute. That swarm of post-judgment motions for
relief has generated an increasing pressure to expand the “carry”
prong to accommodate those convictions questioned in light of
Bailey. Although our cases are neither completely uniform nor
explicit, my reading of § 924(c) and the applicable precedent is
that the “carry” prong of § 924(c) requires proof of the following
three elements: (1) that a defendant exercised dominion or control
over a firearm by touching, moving or transporting the gun; (2) to
make it accessible; (3) for the purpose of facilitating or
accomplishing the underlying drug trafficking offense. Each of
those elements is discussed briefly below.
The plain and ordinary meaning of the term “carry” demands
some showing that the defendant touched, moved or transported the
gun. See Hall, 110 F.3d at 1161. That interpretation is
consistent with our own precedent and with the Supreme Court’s
discussion of § 924(c) in Bailey. See Bailey, 116 S. Ct. at 507
(“a firearm can be used without being carried, e.g., when an
offender has a gun on display during a transaction, or barters with
a firearm without handling it”) (emphasis added); see also
Thompson, 122 F.3d at 307 (“‘carry’ in § 924(c)(1) involves moving
or transporting the firearm in some fashion, or bearing the firearm
upon one’s person in some way”). A few of our non-vehicular cases
have haphazardly defined “carry” to permit liability any time a
defendant is “within arm’s reach” of the firearm, without regard to
whether there is evidence the defendant moved, handled or
transported the firearm. E.g., Hall, 110 F.3d at 1161. At first
22
blush, those cases appear to be grounded on mere proximity, rather
than handling or movement. A closer examination of those cases,
however, reveals that the proximity of the defendant was measured
in the opinion itself as a necessary, rather than sufficient,
condition for liability. Hall, 110 F.3d at 1162. I have been
unable to find any case in which we relied solely upon the
defendant’s proximity to a gun not carried on his or her person to
sustain a § 924(c) conviction.
The “carry” prong also demands a showing of accessibility.
When a defendant is accused of carrying a gun and there is no
vehicle involved, the logical and obvious meaning of the phrase
“carrying a gun” includes the idea that the gun is at ready and
available for the defendant’s use. See Thompson, 122 F.3d at 307;
Hall, 110 F.3d at 1161-62; see also United States v. Foster, 1998
WL 2521, at *9 (9th Cir.) (en banc). That obvious premise explains
both the derivation of the misleading “within arm’s reach” language
in our opinions defining “carry” and any confusion about whether it
is a necessary or sufficient condition for liability. See United
States v. Pineda-Ortuno, 952 F.2d 98, 103-04 (5th Cir. 1992)
(describing the evolution of the “easy reach” requirement in non-
vehicle cases). Movement without ready accessibility would amount
to nothing more than storage nearby a drug transaction, an even
more ludicrous interpretation of “carry” which would eliminate any
potential purpose the gun might otherwise play in facilitating the
drug trafficking offense.21 Cf. Bailey, 116 S. Ct. at 508 (“A
21
We have on several occasions drawn a distinction between
23
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.").
Finally, the plain language of § 924(c) requires proof that
the defendant “used” or “carried” the firearm “during and in
relation to” a crime of violence or a drug trafficking crime. The
“in relation to” clause insures that a defendant will not be
“carry” in the vehicular context and “carry” when no vehicle is
involved. When a vehicle is involved, the Court has been tempted
to ignore the requirement that the firearm be accessible and to
rely solely upon the movement element to establish liability for
“carrying” a gun. Two of our recent cases go so far as to hold
that accessibility is not a required element in a vehicular
context. United States v. Harlan, 130 F.3d 1152, 1153 (5th Cir.
1997); Muscarello, 106 F.3d 636 (5th Cir.), cert. granted, 118 S.
Ct. 621 (1997). The petition for writ of certiorari which was
granted in Muscarello framed the relevant issue as whether,
contrary to Harlan and Muscarello, liability for “carrying” a gun
requires a showing of accessibility.
The majority opines that Muscarello affected no change in our
vehicular precedent. I disagree. Muscarello, which requires no
showing of accessibility or contemporaneous connection with the
underlying drug trafficking offense, is inconsistent with our own
precedent and with the Supreme Court’s analysis in Bailey.
24
punished for committing a drug trafficking offense while in
possession of a firearm when the presence of the firearm is
coincidental or unrelated to the crime. Smith v. United States,
113 S. Ct. 2050, 2059 (1993). Section 924(c) requires that there
be some relation-ship between the presence of the gun and the
underlying drug trafficking offense. See United States v. Wilson,
884 F.2d 174, 177 (5th Cir. 1989) (Congress sought to avoid
construction that would allow conviction for inadvertent possession
of a firearm during an unrelated crime). Specifically, the firearm
must have some potential purpose or effect with respect to the drug
trafficking offense. Smith, 113 S. Ct. at 2059; see also United
States v. Pomranz, 43 F.3d 156, 160 (5th Cir. 1995) (the actus reus
of a § 924(c) offense is the employment of a weapon in the context
of a predefined crime); id. at 162 (“the indispensable predicate
offense is as important or essential to the completed offense as
the carrying or using of the firearm”). The statute further
requires that the actus reus of the offense occur “during” a drug
trafficking crime, which makes plain that there must also be some
close temporal relationship between the defendant’s employment of
the firearm and the predicate drug trafficking offense.
Based upon the foregoing elements, Wainuskis’ conviction
cannot be affirmed on an alternative theory that she “carried” the
gun absent evidence that Wainuskis placed the Colt pistol under the
mattress at a time relevant to and for the purpose of facilitating
the predicate drug trafficking offense.
25
III.
Applying these elements to Wainuskis’ case discloses that the
record is not sufficiently developed to permit liability on the
alternate theory that she “carried” the Colt pistol. Given
Wainuskis’ admission that the firearm was within arm’s reach, there
is no dispute that Wainuskis could have accessed the Colt pistol.
Although the majority agrees in principle that both movement and
accessibility are required, it fails to require evidence of
movement, relying instead upon a series of unjustified inferences
drawn from a silent record. The majority fails to even discuss the
third element, the statutory requirement that Wainuskis’ conduct
occur at a relevant time to and for the purpose of facilitating the
predicate drug trafficking offense. That is because there is no
evidence that Wainuskis’ “constructive possession” of the subject
firearm occurred “during and in relation to” the predicate drug
trafficking offense.
The majority simply decides, without the benefit of any
supporting evidence, that Wainuskis probably placed the gun under
the mattress. To reach that conclusion the majority infers that
Wainuskis and Materne had guns in Petal, where they lived with
Wainuskis’ mother, that they moved those guns from Petal to
Ellisville, where the majority states they lived alone, and that
the gun was found in their home. Therefore, either Wainuskis or
Materne must have placed the gun under the mattress.
26
Let the record be clear. There is no record evidence that the
Colt pistol found under Wainuskis’ mattress or any other
identifiable weapon was moved from Petal to Ellisville. There is
no record evidence that Wainuskis, or any other identifiable
person, touched or moved the gun found under the mattress at any
particular time. There is no record evidence that Materne and
Wainuskis were the sole occupants of the Ellisville house. There
is likewise no evidence indicating that drugs were found in the
bedroom where Wainuskis was found or that drug transactions ever
occurred in the bedroom or that any particular drug transaction was
occurring when the house was searched. Similarly, there is no
indication that the Colt pistol placed under the mattress was
accessible when drug transactions were occurring or that the pistol
was capable of or did facilitate any particular drug transaction.
I disagree that we can infer from a silent record that
Wainuskis placed the gun under the mattress at some time in the
past (satisfying the movement element) for the purpose of employing
it in a drug trafficking offense. See United States v. McPhail,
112 F.3d 197, 199-200 (5th Cir. 1997) (refusing to infer that gun
seized from defendant known to have been involved in drug trade for
months was carried in car for the purpose of facilitating a drug
transaction). As in McPhail, I do not see how we can simply assume
away the required factual basis for Wainuskis’ plea by substituting
our own view of what likely occurred for a factual basis showing
what actually occurred. Rather, we should require that a
sufficient factual basis be developed in the district court to
27
demonstrate the defendant was connected with this gun, and that the
gun made the basis of her conviction was placed under the mattress
for some purpose related to her drug trafficking offense. It is
absolutely meaningless to first state that § 924(c) liability for
“carrying” a firearm requires some evidence of movement or
transportation and then to simply assume that it occurred.22
Moreover, even assuming that Wainuskis placed the gun under
the mattress, a fact not supported by the record, there can be no
§ 924(c) liability unless the movement or transportation occurs at
a time that is relevant to the predicate drug trafficking offense.
See 18 U.S.C. § 924(c); see also United States v. McKinney, 120
F.3d 132, 134 (8th Cir. 1997). Simply placing or storing a gun in
a given location for future employment in drug trafficking is no
more “carrying” a gun for purposes of § 924(c) than it is “using”
a gun. Notwithstanding the well-worn mantra that Bailey affects no
change in our “carry” precedent, Bailey instructs that both “use”
22
Alternatively, the majority relies upon the Magistrate
Judge’s “finding” that Wainuskis secreted the weapon under the
mattress. The Magistrate Judge never made any such finding. The
statement quoted by the majority is part of the Magistrate Judge’s
finding and conclusion that Wainuskis’ exercised no more control
over the Colt pistol than possession, and that possession alone is
insufficient to establish liability for “carrying” a firearm in
violation of § 924(c). Wainuskis admitted nothing by failing to
object to the Magistrate Judge’s report recommending that she be
granted relief.
28
and “carry” have an active, rather than passive, connotation.
Bailey, 116 S. Ct. at 506 (“Had Congress intended possession alone
to trigger liability under § 924(c)(1), it could easily have so
provided.”); id. at 508 (“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 509 (noting that Congress did not include “intended” conduct
within the ambit of § 924(c)(1)).
Without regard to whether simply placing a gun in your bedroom
is “carrying” a gun, surely it stretches credibility to contend
that lying on that bed in a room where there are no drugs is
carrying a gun “during and in relation to” a drug trafficking
offense simply because there are drugs in another area of the
house. The majority makes absolutely no attempt to establish a
nexus between Wainuskis’ constructive possession of the Colt pistol
and any underlying drug transaction. Wainuskis was charged with
(though not convicted of) possession with intent to distribute
methamphetamine. I suppose Wainuskis’ ongoing constructive
possession of methamphetamine creates the potential for an argument
that she violated § 924(c) anytime she had constructive possession
of drugs and wandered too close to a firearm. Fortunately, we have
rejected that construction in a factually analogous case.
In United States v. Hall, 110 F.3d 1155 (5th Cir. 1997) the
defendant was arrested after a search warrant was executed on a
private residence. Officers found and arrested Hall in the living
29
room. Id. at 1157-58. There was a large quantity of cocaine on
the coffee table and a gun lying on the floor within a few feet of
the coffee table. Id. Hall pleaded guilty. This Court reversed
and vacated Hall’s conviction, finding that he neither “used” nor
“carried” the gun during and in relation to a drug trafficking
offense. Id. at 1162. Although the Hall panel relied in part on
the fact that the record did not demonstrate how close Hall was to
the coffee table, and hence the gun, the panel also relied upon the
fact that there was no evidence to establish “who transported the
gun to the trailer or moved it to its position on the floor.” Id.
at 1162.
Wainuskis presents an even stronger case for relief than Hall.
In Hall, the gun was discovered in plain view, in the same room as
both the defendant and the drugs. In this case, the gun was found
concealed under a mattress in a room where no drugs were found.
The existing record does not support the inference that Wainuskis
placed the gun under the mattress for the purpose of making it
accessible to facilitate her drug trafficking offense. Thus, the
record contains no evidence that Wainuskis’ constructive possession
of the Colt pistol coincided with her employment of that weapon in
the predicate drug offense.
In truth, although the majority purports to be requiring
evidence that Wainuskis moved or transported the firearm, it has
actually inferred that element out of existence and Wainuskis’
conviction rests upon nothing more than what the government stated
in the Rule 11 hearing -- constructive possession. The majority
30
concedes as much with its comment that “Wainuskis merely possessed
the weapon and did not actively employ it at the time of the
search,” a statement which seems out of line given its conclusion
that Wainuskis “carried” the firearm. Possession of a gun, even
during and in relation to a drug trafficking offense, has never
been enough to support a § 924(c) conviction for “carrying” a gun.
See Smith, 113 S. Ct. at 2059 (possession of a firearm during a
drug trafficking offense is insufficient to support a § 924(c)
conviction absent proof that the gun facilitated the drug
trafficking offense); Thompson, 122 F.3d at 307 (“[i]t is clear
that carry connotes more than mere possession”); Hall, 110 F.3d at
1161 (carry “must connote more than mere possession of a firearm by
a person who commits a drug offense”); see also Bailey, 116 S. Ct.
at 506 (if Congress “intended possession alone to trigger liability
under § 924(c)(1) it easily could have so provided”); id. at 506
(the ordinary meanings of “use” and “carry” connote more than
simple possession). Because the record does not contain any
evidence that Wainuskis moved or transported the gun made the basis
of her plea, I would hold that the factual basis supporting her
plea is insufficient to support her liability on the alternative
theory that she “carried” the Colt pistol.
Recognizing the weakness of the tenuous series of inferences
underlying its conclusions that Wainuskis placed the gun under the
mattress, the majority seeks to expand the offense by relying upon
additional firearms seized from Wainuskis’ house.23 The problem
23
Contrary to the majority’s presentation both the Rule 11
31
with that analysis is that there is no more evidence that Wainuskis
moved any one of those other guns than there is evidence that she
moved the Colt pistol made the basis of her plea. Likewise, there
is no more evidence tying any of those guns to the predicate drug
trafficking offense than there is with respect to the Colt pistol
made the basis of her plea. Expanding the inquiry to the other
guns does not bolster the majority’s conclusion that Wainuskis was
carrying a gun during and in relation to a drug trafficking
offense.
Wainuskis and Materne admitted that the two guns made the
subject of their respective convictions, the Ruger pistol found
near Materne and the Colt pistol found near Wainuskis, were their
guns. There is absolutely no evidence that the remaining guns
found in the home, or any particular one of the guns found in the
home, were exclusively Materne’s and Wainuskis’. To the contrary,
the PSR states that “numerous firearms in the kitchen/den area were
located within arm’s reach of the majority of the occupants of the
kitchen and den.” That statement suggests that there were a number
of people in the house when the search occurred, and that those
individuals may have been in possession of firearms. Likewise,
there is no evidence establishing that Materne and Wainuskis lived
at the Ellisville address alone or that they owned or controlled
all of the firearms found at that address.
The record contains no evidence that Wainuskis moved, handled
hearing and the PSR rely upon Wainuskis’ possession of the Colt
pistol to define her offense.
32
or transported the firearm made the subject of her plea. Even
assuming that Wainuskis placed the gun under the mattress, the
record contains no evidence that Wainuskis actively employed the
firearm during and in relation to a drug trafficking offense. I
do not think we can ignore the lessons of Bailey and resurrect pre-
Bailey § 924(c) law by simply ignoring both of those substantive
elements of § 924(c) liability. Wainuskis’ conviction cannot be
sustained by resort to the novel theory not contemplated in the
district court that she “carried” the Colt pistol in violation of
§ 924(c).
IV.
I also dissent from the majority’s conclusion that Wainuskis’
conviction can be sustained on the theory that she aided and
abetted Materne’s independent violation of § 924(c).
As an initial matter, I object to the majority’s reliance upon
this theory which was not included in the indictment against
Wainuskis, was not made the basis of her plea and was not in fact
raised until the government filed a motion for reconsideration of
the district court’s decision to grant Wainuskis relief on her
§ 2255 motion. I also believe, however, that the majority reaches
the wrong conclusion from application of this theory.
Wainuskis’ plea cannot be sustained on an aiding and abetting
theory absent evidence that Materne violated § 924(c) and that
Wainuskis engaged in conduct in furtherance of that offense.
Guidry v. Bank of LaPlace, 954 F.2d 278, 283 n.5 (5th Cir. 1992)
33
(aiding and abetting statute requires proof that principal
committed subject offense); United States v. McCoy, 539 F.2d 1050,
1064 (5th Cir. 1976) (“It is true that the existence of the crime
is an element of the offense of aiding and abetting.”); United
States v. Barfield, 447 F.2d 85, 89 (5th Cir. 1971) (aiding and
abetting statute requires proof “beyond a reasonable doubt that the
alleged offense was committed by someone and that the person
charged as an aider and abettor assisted in the commission of the
crime”). Wainuskis’ assistance must be demonstrated with evidence
that she (1) associated with the criminal venture; (2) participated
in the venture; and (3) sought by action to make the venture
succeed. United States v. Salazar, 66 F.3d 723, 729 (5th Cir.
1995); United States v. Martiarena, 955 F.2d 363, 366 (5th Cir.
1992).
The principal defect in the majority’s aiding and abetting
theory is that Materne was not convicted for violating § 924(c).24
Moreover, the record evidence relating to the § 924(c) charge
against Materne suffers from the same deficiencies as that
24
Materne initially pleaded guilty to violating § 924(c) at
the same hearing in which Wainuskis pleaded guilty. The docket
sheet reflects that Materne later filed a motion to withdraw his
guilty plea to the § 924(c) charge, which was granted by the
district court. The substance of Materne’s second Rule 11 hearing,
in which he pleaded guilty to other charges, is not part of the
appellate record, but it is clear that he was not convicted on the
§ 924(c) charge.
34
presented against Wainuskis. The majority posits that Materne was
both “using” and “carrying” the Ruger pistol. The pistol was not
“used” just because it was sitting in plain view when police
searched the house, a fact which the majority equates with
Materne’s active employment by “display.” Bailey, 116 S. Ct. at
508 (“The active-employment understanding of ‘use’ certainly
includes brandishing, displaying, bartering, striking with, and
most obviously, firing or attempting to fire, a firearm.”).
Whatever the Supreme Court meant by “displaying” a firearm, I feel
sure that “active employment” requires something more than simply
being within arm’s reach of a visible gun in your home. Similarly,
the gun was not “carried” just because, as with the Colt pistol
attributed to Wainuskis, it was found within arm’s reach of
Materne. The majority’s construction would permit Materne’s
liability any time he wandered within arm’s reach of a visible
firearm at the same time he was also in constructive possession of
drugs. Such a construction reads out Congress’ limitation to
firearms used and carried “during and in relation to” a drug
trafficking offense. See Smith, 113 S. Ct. at 2059. Thus, I am
not at all certain that the record sufficiently establishes an
independent § 924(c) violation by Materne.
Even assuming the record establishes Materne’s independent
violation of § 924(c), there is absolutely no evidence to establish
the post-judgment theory that Wainuskis aided and abetted that
violation. The majority’s discussion depends upon Wainuskis’
participation in Materne’s drug trafficking. See Majority Opinion
35
at 12-13 (“That the couple lived together and sold drugs together
for a period of five months indicates the type of on-going offense
to which this doctrine may be easily applied.”). Selling drugs,
even when done together, does not violate § 924(c) and does not
tend to show how or whether Wainuskis facilitated Materne’s
possession of the Ruger pistol.
Wainuskis cannot be held liable for aiding and abetting
Materne unless she “engaged in some affirmative conduct designed to
aid the venture.” Martiarena, 955 F.2d at 367 (rejecting as
insufficient government’s evidence that defendant knew about and
attempted to avoid principal’s exposure to liability for offense,
and requiring evidence that defendant “actively participated in
conduct that assisted or rewarded principal’s offense”).
Specifically, Wainuskis’ plea must be supported with evidence that
she knew the particular gun was available to Materne and that she
took some action which assisted Materne’s use or carriage of the
weapon. E.g., Salazar, 66 F.3d at 729 (“the jury was required to
find that Salazar knew that the gun was at least available to
Hernandez and that Salazar took some action which assisted
Hernandez's use of the gun") (internal citation omitted). Mere
presence and association, which are all that has been shown here,
are insufficient. Id.; Martiarena, 955 F.2d at 366-67.
The majority also invokes the aiding and abetting theory with
respect to the Colt pistol found under Wainuskis’ mattress and with
respect to the additional firearms found in the house. I can think
of no reason why, after reaching the conclusion that Wainuskis’
36
plea is supported by a sufficient factual basis with respect to her
own conduct, the majority needs to develop not one but three
separate theories for holding her vicariously liable for Materne’s
conduct. The gist seems to be that there are plenty of bad facts
to support the notion that somewhere, at some time, § 924(c) was
violated, whether by Materne with Wainuskis’ knowledge and
assistance, or by Wainuskis herself. While I can understand, and
perhaps even sympathize with that position, I think the majority’s
indulgence in a fanciful series of inferences and theories reveals
a blindly determined intent to support the guilty plea. Federal
Rule of Criminal Procedure 11 and the well-established
constitutional principles upon which it is based require more. The
appropriate remedy is to remand with instructions that each element
of the pleaded offense be supported with some factual basis. The
government’s Rule 11 burden is light and can be met with evidence
logically addressing each element of the offense. When, as here,
the law changes dramatically after a plea such that we are
purporting to sustain a guilty plea on at least four alternative
theories that were never part of the calculus when the defendant
pleaded guilty, I think justice demands that we return the case to
the district court for a clarification of the plea.
I would vacate Wainuskis’ plea and remand to the district
court for repleading or trial with due consideration of the Supreme
Court’s decision in United States v. Bailey, 116 S. Ct. 501 (1995).
37
United States v. Wainuskis
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-04-09
Citations: 138 F.3d 183
Copy CitationsCombined Opinion