United States v. Owens ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 16, 2007
Charles R. Fulbruge III
Clerk
No. 05-30618
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES JOSEPH OWENS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:03-CR-20018
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges,
PER CURIAM:*
James Joseph Owens, Jr. pleaded guilty to conspiracy to
possess with intent to distribute cocaine, marijuana,
methamphetamine, and ecstacy, in violation of 18 U.S.C. § 846, for
which he was sentenced to the mandatory minimum 120-month term of
imprisonment, and to “possession of a firearm during and in
relation to a drug trafficking crime,” in violation of 18 U.S.C.
§ 924(c)(1), for which he was sentenced to the mandatory 60-month
term of imprisonment. Owens challenges the sufficiency of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-30618
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factual basis to support his conviction for possessing a firearm in
furtherance of a drug trafficking crime. The Government concedes
that, to the extent the indictment charged Owens with possessing a
firearm in furtherance of a drug trafficking offense, the
stipulated facts and Owens’s admissions do not support his
conviction.
“[Section] 924(c) criminalizes two separate
offenses--(1) using or carrying a firearm during and in relation to
a drug trafficking crime, and (2) possessing a firearm in
furtherance of a drug trafficking crime.” United States v. Combs,
369 F.3d 925, 931 (6th Cir. 2004) (emphasis omitted). The
indictment did not charge Owens with using or carrying a firearm.
Thus, we assume arguendo that the indictment charged Owens with
possessing a firearm in furtherance of a drug trafficking crime.
The record as a whole does not show that Owens’s possession of
firearms furthered, advanced, or helped forward his drug
trafficking activities. See United States v. Ceballos-Torres, 218
F.3d 409, 410-11 (5th Cir. 2000). Because the conduct to which
Owens admitted does not constitute the crime of possessing a
firearm in furtherance of a drug trafficking offense and added 60
months to his sentence, the district court’s error in accepting
Owens’s plea of guilty to this offense was plain error which
affected Owens’s substantial rights. See United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004); United States v.
Castro-Trevino, 464 F.3d 536, 544 (5th Cir. 2006). A guilty plea
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based on facts insufficient to support a conviction “‘colors the
fundamental fairness of the entire proceeding.’” United States v.
Palmer, 456 F.3d 484, 491 (5th Cir. 2006) (quoting Kennedy v.
Maggio, 725 F.2d 269, 273 (5th Cir. 1984)). Accordingly, we
exercise our discretion to correct the error on appeal.
We AFFIRM Owens’s conviction for conspiracy to possess with
intent to distribute controlled substances under 18 U.S.C. § 846
but VACATE his conviction for possession of a firearm in
furtherance of a drug trafficking crime under 18 U.S.C.
§ 924(c)(1)(A). We REMAND for further proceedings in accordance
with this opinion.
Counsel’s outstanding motion to withdraw under Anders v.
California, 386 U.S. 738 (1967), is DENIED.
CONVICTION AFFIRMED IN PART, VACATED AND REMANDED IN PART.