United States v. Jiminez-Ramirez ( 1997 )


Menu:
  •                                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    SEP 23 1997
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 97-8015
    v.
    (D.C. No. 96-CV-42)
    (District of Wyoming)
    MANUEL JIMENEZ-RAMIREZ,
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before TACHA, BALDOCK and LUCERO, Circuit Judges.
    Manuel Jimenez-Ramirez (“Jimenez-Ramirez”), appearing pro se. Having
    been granted leave to proceed in forma pauperis, appeals from an order of the
    United States District Court for the District of Wyoming denying his motion to
    vacate, set aside, or correct sentence by a person in federal custody pursuant to 
    28 U.S.C. § 2255
     (1994).
    *
    The case is unanimously ordered submitted without oral argument pursuant to Fed. R.
    App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except
    under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally
    disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited
    under the terms and conditions of 10th Cir. R. 36.3.
    On July 12, 1994, Jimenez-Ramirez pled guilty to Count Three of an
    indictment, which charged him with knowingly and intentionally using and
    carrying a firearm during and in relation to a drug trafficking offense in violation
    of 
    18 U.S.C. § 924
    (c)(1). Jimenez-Ramirez was sentenced to sixty months
    imprisonment. The district court ordered that the sixty-month sentence run
    consecutive to a ten month term of imprisonment that Jimenez-Ramirez received
    pursuant to his plea of guilty to Count One of the indictment. Jimenez-Ramirez
    did not file a direct appeal.
    On February 20, 1996, Jimenez-Ramirez filed a motion to vacate, set aside,
    or correct a sentence pursuant to 
    28 U.S.C. § 2255
    . Jimenez-Martinez challenged
    his conviction and sentence under 
    18 U.S.C. § 924
    (c)(1). He argued that, in the
    light of the Supreme Court’s decision in Bailey v. United States, 
    116 S. Ct. 501
    (1995), his conviction should be overturned because he neither “used” nor
    “carried” a firearm in violation of § 924(c)(1). 1
    On January 31, 1997, the district court denied Jimenez-Ramirez’s motion
    for relief under 
    28 U.S.C. § 2255
    . Relying on our decision in United States v.
    1
    In Bailey, the Supreme Court held that the “use” prong of § 924(c)(1) “denotes active
    employment.” Bailey, at 509. The Court gave examples of what would constitute “use,”
    including “brandishing, displaying, bartering, striking with, and most obviously, firing or
    attempting to fire, a firearm.” Id. at 508. The Court stated that “[a] defendant cannot be charged
    under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds.” Id. It is clear from
    the record that Jimenez-Ramirez did not “use” a firearm within the meaning of § 924(c)(1) as
    Bailey defines that term.
    -2-
    Barnhardt, 
    93 F.3d 706
     (10th Cir. 1996) and our “vehicular carrying” cases, see
    United States v. Miller, 
    84 F.3d 1244
     (10th Cir. 1996), the district court held that
    there was sufficient evidence in the record to support a conviction under the
    “carry” prong of § 924(c)(1).
    On appeal, Jimenez-Ramirez claims that the district court erred in denying
    his motion. In addition, Jimenez-Ramirez argues that his original plea of guilty
    should be set aside because it was not made knowingly and voluntarily.
    Specifically, Jimenez-Ramirez alleges that his counsel “coached” him on how to
    respond to the court’s questioning at the guilty plea hearing and that the
    sentencing court failed to apprise him of the nature of the offense and the
    consequences of a guilty plea.
    I
    Although Jimenez-Ramirez pled guilty to using or carrying a firearm during
    and in relation to a drug trafficking offense, he may still challenge his conviction
    under 
    18 U.S.C. § 2255
    , in the light of the Supreme Court’s decision in Bailey.
    See United States v. Barnhardt, 
    93 F.3d 706
    , 708-09 (10th Cir. 1996) (holding
    that Bailey applies retroactively to cases on collateral review). Thus, the issue is
    whether Bailey mandates that we vacate, set aside, or correct appellant’s sentence.
    In United States v. Barnhardt, presented with facts nearly identical to those
    in the instant case, we held that when a defendant pleads guilty, “it is necessary
    -3-
    only that the court ‘mak[e] such inquiry as shall satisfy it that there is a factual
    basis for the plea.’” 
    Id. at 709
     (quoting Fed. R. Crim. P. 11(f)). Therefore, we
    held that the relevant inquiry was “whether there is an adequate factual basis for
    his guilty plea.”
    “The acceptance of a guilty plea is deemed a factual finding that there is an
    adequate factual basis for the plea.” 
    Id. at 710
     (citations omitted). Thus, we must
    accept the district court’s finding unless it is clearly erroneous. 
    Id.
     A finding of
    fact is not clearly erroneous unless the record provides no factual support or,
    having considered the evidence in support of the district court’s decision, “we are
    left with a definite and firm conviction that a mistake has been made.” 
    Id.
    Jimenez-Ramirez claims that he was not “carrying” the firearm within the
    meaning of § 924(c)(1) because the gun was neither on his person nor
    immediately accessible to him. We disagree. The government is not required to
    prove that the firearm was in “effortless reach” in order to obtain a conviction
    under the “carry” prong of § 924(c)(1). United States v. Miller, 
    84 F.3d 1244
    ,
    1259 (10th Cir. 1996). In Miller, we held that the government may obtain a
    conviction under the “carry” prong of § 924(c)(1) if it proves that “the defendant
    transported a firearm in a vehicle and that he had actual or constructive
    possession of the firearm while doing so.” Id. at 1259. During a consent search
    of Jimenez-Ramirez’s van that resulted in the seizure of four pounds of marijuana
    -4-
    and seven grams of cocaine, a gun was found behind the cushion of the driver’s
    seat. In addition, Jimenez-Ramirez admitted at his plea hearing that he “carried”
    the gun for protection. Thus, it was not clear error for the sentencing court to
    accept Jimenez-Ramirez’s plea because there is an adequate factual basis in the
    record to support a plea of guilty under the “carry” prong of § 924(c)(1).
    II
    In this appeal, Jimenez-Ramirez asserts that undue influence was exerted by
    his trial counsel with respect to his guilty plea and that the sentencing court failed
    to ensure he understood the nature of the charges against him and the
    consequences of a guilty plea. Because Jimenez-Ramirez failed to raise these
    grounds in his original § 2255 motion to the district court he has waived them.
    See United States v. Cook, 
    997 F.2d 1312
    , 1316 (10th Cir. 1993); Lucero v.
    United States, 
    425 F.2d 172
    , 173 (10th Cir. 1970).
    Therefore, we hold that the district court did not err in upholding Jimenez-
    Ramirez’s conviction for using or carrying a firearm during and in relation to a
    drug-trafficking crime in violation of 
    18 U.S.C. § 924
    (c)(1).
    -5-
    AFFIRMED. The mandate shall issue forthwith.
    ENTERED FOR THE COURT
    Carlos F. Lucero
    Circuit Judge
    -6-