United States v. Corey ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 4 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-1084
v.
(D.C. No. 96-N-531, 92-CR-37)
(D. Colo.)
JOHN COREY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
Background and Procedural Posture
On October 18, 1991, John Corey and three accomplices robbed a federal
credit union in Westminster, Colorado. (See Aplt. App. #2, attachment 2 (Corey
Plea Agreement). Two of Mr. Corey’s accomplices were armed. Mr. Corey was
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
not. (See id.) Mr. Corey subsequently pleaded guilty to one count of armed
robbery of a financial institution, in violation of 18 U.S.C. §§ 2 and 2113(a) and
(d), as well as one count of aiding and abetting the use of a firearm in relation to
a crime of violence, in violation of 18 U.S.C. § 924(c)(1). See United States v.
Corey, 999 F.2d 493, 494 (10th Cir. 1993). Mr. Corey was sentenced to 30
months imprisonment for count one, to be followed by 60 months imprisonment
for count two, to be followed by a term of supervised release of five years. Mr.
Corey appealed his sentence to this court, and we affirmed. See id. at 496-97.
On December 13, 1993, Mr. Corey filed a motion under 28 U.S.C. § 2255
with the district court, challenging his conviction on the grounds that the United
States lacked jurisdiction over his crime. See Corey v. United States, No. 93-F-
2613 (D.Colo. August 31, 1994) (unpublished order). The district court rejected
his motion. See id. No appeal was filed. Then, on March 6, 1996, Mr. Corey
filed a second § 2255 motion with the district court, this time challenging his
§ 924(c) conviction in light of Bailey v. United States, 116 S. Ct. 501 (1995).
(See Aplt. App. #2). The district court denied this motion, holding that Mr.
Corey had not shown “that he was prejudiced by . . . the Government’s reliance
on a pre-Bailey interpretation of” § 924(c), nor had he shown that “a fundamental
miscarriage of justice will result if his conviction and sentence . . . are not
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vacated.” Corey v. United States, No. 96-N-531 at 8 (D. Colo. Feb. 12, 1997)
(unpublished order).
Mr. Corey here appeals the district court’s dismissal of his 1996 § 2255
motion. 1 Because Mr. Corey’s § 2255 motion was filed with the district court
before enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the provisions of that act requiring § 2255 appellants to obtain a
certificate of appealability, as well as the provisions regarding second § 2255
motions, do not apply in this case. See United States v. Kunzman, 125 F.3d 1363,
1365 n.2 (10th Cir. 1997). After considering Mr. Corey’s appeal on the merits,
we agree with the district court’s legal analysis of Mr. Corey’s motion, and affirm
its dismissal.
Standard of Review
When reviewing the denial of a § 2255 motion, we review the district
court's legal rulings de novo, and its findings of fact for clear error. See United
States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996). Because Mr. Corey filed his
§ 2255 motion pro se, we consider his pleadings liberally. See Drake v. City of
Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
1
On June 23, 1997, this court dismissed Mr. Corey’s appeal for lack of
prosecution, but we subsequently granted his motion to reopen the appeal. (See Susie
Tidwell, Memorandum of October 23, 1997.)
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Discussion
Ordinarily a defendant's unconditional guilty plea waives all
nonjurisdictional challenges to his conviction. See Kunzman, 125 F.3d at 1365.
Accordingly, a defendant is generally precluded from collaterally attacking a
voluntary and intelligent guilty plea. See United States v. Barnhardt, 93 F.3d
706, 708 (10th Cir. 1996) (citing United States v. Broce, 488 U.S. 563, 565
(1989)). However, an inmate may challenge a conviction under § 924(c)(1) when
the factual basis for a guilty plea does not constitute a crime under that section.
See Barnhardt, 93 F.3d at 708.
An inmate may not collaterally challenge a conviction on grounds that
could have been raised and disposed of on direct appeal unless he can prove
sufficient cause or prejudice for his failure to mount his attack, or that a
fundamental miscarriage of justice would otherwise result. See United States v.
Holland, 116 F.3d 1353, 1356 (10th Cir. 1997).
Mr. Corey contends that the Supreme Court’s decision in Bailey v. United
States, 116 S. Ct. 501 (1995), altered the law regarding aiding and abetting of the
use of a firearm in relation to a drug trafficking offense under 18 U.S.C.
§ 924(c)(1), and that consequently there is now cause to find that there was no
basis for his guilty plea to aiding and abetting the use of a firearm during a crime.
We have held that Bailey applies retroactively to cases on collateral review. See
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Holland, 116 F.3d at 1355-56 (citing Barnhardt, 93 F.3d at 708-09). However,
Bailey only altered the legal interpretation of the statutory term use in § 924(c)
convictions. We have never held that Bailey altered in any way the law governing
aiding and abetting another’s use of a firearm in violation of § 924(c). We
decline Mr. Corey’s invitation to do so here. Because the substantive law
governing aiding and abetting a § 924(c)(1) violation was not altered by Bailey,
and because it is clear that his accomplices used a gun during the commission of
the robbery, Mr. Corey fails to show cause, prejudice, or that a fundamental
miscarriage of justice resulted from his and the district court’s reliance upon a
pre-Bailey analysis of his guilty plea.
Mr. Corey also challenges the district court’s application of a Second
Circuit case, United States v. Medina, 32 F.3d 40 (2d Cir. 1994), to his § 2255
motion. 2 In Medina, the court held that a defendant cannot be convicted of aiding
and abetting a § 924(c) violation without a showing that the defendant “performed
some act that directly facilitated or encouraged the use or carrying of a firearm.”
Id. at 45. The court went on to say that “a defendant who is present but unarmed
during the commission of a crime may ([] by division of labor) make it easier for
2
Even though Medina does not constitute an intervening change in the law
sufficient to create cause to overturn Mr. Corey’s conviction, the district court found the
case to reflect the law in the Tenth Circuit and thus useful guidance in its review of Mr.
Corey’s guilty plea. Our analysis of Medina comports with that of the district court.
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another to carry a firearm and therefore aid and abet that act.” Id. at 47. The
district court held that under Medina the undisputed facts underlying Mr. Corey’s
guilty plea supported his conviction of aiding and abetting a § 924(c) violation.
See Corey v. United States, No. 96-N-531 at 7-8 (D. Colo. Feb. 12, 1997). We
agree.
Mr. Corey does not contest the fact that his accomplices used firearms
during the course of the robbery, and that he knew in advance that they would.
Instead, Mr. Corey asserts that because mere “presence and knowledge” that an
accomplice will use a firearm during a crime are insufficient to support an aiding
and abetting conviction, the facts of his case do not support his conviction for
aiding and abetting a § 924(c) violation under Medina. (See Aplt. Br. at 8-9.)
Here, Mr. Corey (1) was present during the robbery; (2) he was aware that
his accomplices planned to use and did use firearms during the course of the
robbery; and (3) he assisted in the crime by gathering money, which in turn
allowed his armed accomplices to keep the credit union’s employees and
customers efficiently subdued. See Corey v. United States, No. 96-N-531 at 7-8
(D. Colo. Feb. 12, 1997); see also United States v. Corey, No. 92-CR-37 (D. Colo
May 4, 1997) (Corey Plea Agreement). Mr. Corey clearly shared in his
accomplices’ intent to use firearms during the robbery in violation of § 924(c).
See United States v. DeSantiago Flores, 107 F.3d 1472, 1478 (10th Cir. 1997).
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What’s more, his actions amount to exactly the sort of “division of labor” that the
Medina court held would support an aiding and abetting conviction under §
924(c). See Medina, 32 F.3d at 47.
Under Medina, it must be shown that the defendant specifically intended to
facilitate the use of a gun during the commission of the underlying crime. As
discussed above, the district court correctly noted that Mr. Corey’s division of
labor plan was designed to both enable and facilitate his accomplices’ use of
firearms during and in furtherance of the robbery. Thus, there was more than a
sufficient basis for Mr. Corey’s guilty plea to aiding and abetting a § 924(c)
violation.
Conclusion
For the reasons stated above, the district court’s dismissal of Mr. Corey’s
§ 2255 motion is AFFIRMED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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