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
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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
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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
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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.
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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
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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
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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
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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
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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.
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