United States v. Robinson ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7060
JACKIE ROBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-95-154-5-1-H, CA-96-372-5-H)
Submitted: April 14, 1998
Decided: May 14, 1998
Before WILKINS and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jackie Robinson, Appellant Pro Se. Christine Blaise Hamilton,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jackie Robinson appeals the district court's order denying his 28
U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion. We deny a cer-
tificate of appealability and dismiss the appeal.
Robinson pleaded guilty to conspiracy to possess with intent to dis-
tribute crack cocaine, 21 U.S.C.A. § 846 (West Supp. 1998), and pos-
session of a firearm in connection with a drug trafficking offense, 18
U.S.C.A. § 924(c)(1) (West Supp. 1998). He received concurrent sen-
tences of forty-eight months for these offenses. He also received a
special assessment of $50 for each offense. In his§ 2255 motion,
Robinson claimed that his guilty plea cannot stand in light of Bailey
v. United States, 516 U.S. 137 (1995), because he did not "use" the
firearm within the contemplation of Bailey.
The district court invoked the concurrent sentence doctrine and did
not address the merits of Robinson's claim. Under that doctrine, if a
defendant receives concurrent sentences on several counts and the
conviction on one count is valid, the validity of the other convictions
need not be considered so long as no collateral consequences will fol-
low from the unreviewed, challenged convictions. See United States
v. McKie, 112 F.3d 626, 628 n.4 (3d Cir. 1997); United States v.
Hudacek, 24 F.3d 143, 145 n.1 (11th Cir. 1994). However, the doc-
trine is inapplicable in situations where the defendant received, in
addition to concurrent terms of imprisonment, cumulative monetary
assessments pursuant to 18 U.S.C.A. § 3013 (West 1994 & Supp.
1998). See Ray v. United States, 481 U.S. 736, 737 (1987); McKie,
112 F.3d at 628 n.4. Because Robinson received a special assessment
of $50 on each conviction, resolution of this case on the basis of the
concurrent sentence doctrine was error.
The criminal information charged Robinson with possession of a
firearm in connection with the crack conspiracy. In his plea agree-
ment, Robinson agreed to plead guilty to conspiracy and to "use" of
a firearm during a drug trafficking offense. At Robinson's Fed. R.
Crim. P. 11 hearing, the district court inquired whether Robinson did
"carry" a firearm during the period of the conspiracy. Robinson
2
answered affirmatively. When the court asked whether Robinson was
guilty of the offense, Robinson replied that he was. The record
reveals, and Robinson in his motion admits, that he was arrested when
attempting to sell crack to an undercover agent. Robinson had a
loaded .38 caliber revolver on his person when he was arrested.
"Use" of a firearm under § 924(c)(l)"requires evidence sufficient
to show an active employment of a firearm by a defendant, a use that
makes the firearm an operative factor in the predicate offense." Bailey
v. United States, 516 U.S. at 143 (emphasis in original). Robinson
clearly did not use the firearm in question. However, the statute also
criminalizes the carrying of a firearm in connection with a drug traf-
ficking offense. See 28 U.S.C. § 924(c)(1). Robinson's possession of
a loaded firearm while he attempted to sell crack to the agent satisfies
the "carry" prong of § 924(c)(1). See United States v. Mitchell, 104
F.3d 649, 653 (4th Cir. 1997) ("``carry' . . . requires knowing posses-
sion and bearing, movement, conveyance, or transportation of the
firearm in some manner").
Because Robinson confirmed at sentencing that he carried the fire-
arm, we conclude that any Bailey-related error at the Rule 11 proceed-
ing was harmless. See United States v. Goins , 51 F.3d 400, 402 (4th
Cir. 1995); see also Fed. R. Crim. P. 11(h). There is no reason to
invalidate Robinson's guilty plea. We therefore deny a certificate of
appealability and dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
DISMISSED
3