United States v. Rivas ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20294
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR ORLANDO RIVAS,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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May 30, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Oscar Orlando Rivas appeals his conviction after a plea of
guilty for using or carrying a firearm during a drug trafficking
offense and his sentence for conspiracy to possess with intent to
distribute cocaine. In our view, the principal issue presented on
this appeal is Rivas's attack on the sufficiency of the factual
basis for his guilty plea. Because we conclude that the factual
basis was sufficient and, additionally, that the district court did
not err in sentencing Rivas, we affirm.
I. FACTS AND PROCEDURAL HISTORY
In May 1994, Department of Public Safety (DPS) officers sent
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an informant to Dare Motors in Houston to contact Domingo Rodriguez
in connection with a drug trafficking investigation in
Bryan/College Station, Texas. The attempt was unsuccessful, and no
further contact was made until September.
In September, Rivas talked to the confidential informant
regarding the drug trafficking at Dare Motors and the lack of
reliability of the source of the drug supply. The informant
purportedly would take the place of the unreliable supplier. The
tentative agreement was that thirty kilograms of cocaine would be
provided. However, because the circumstances of the requested
delivery were unacceptable to the task force, the transaction did
not take place.
On October 5, 1994, Rivas called the informant, indicating
that "his people were ready to go ahead." Thereafter, DPS
undercover officers contacted Rodriguez and arrangements were made
for the delivery of ten kilograms of cocaine that Rodriguez would
pay for at the time of delivery, five kilograms of cocaine that
would be fronted by the officers to Rodriguez, and also the
delivery of an additional fifteen kilograms at a later date.
On October 6, as planned, Zeek Cavazos, the undercover
officer, remained at Dare Motors with Rodriguez and Luis Gonzalez
to view the money, and Rivas left with the informant to inspect the
cocaine. After Rivas and the informant left Dare Motors in the
undercover vehicle, they were stopped by DPS officers on the
freeway. The officers arrested Rivas, who had a 9mm Beretta pistol
underneath his seat.
After initially entering a not guilty plea, Rivas pleaded
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guilty at rearraignment, without the benefit of a plea agreement,
to two counts of a three-count indictment: conspiracy to possess
with intent to distribute cocaine (Count I) and using or carrying
a firearm during a drug-trafficking offense (Count II). The
district court sentenced him to 151 months in prison--the bottom of
the guideline range--as to Count I, to a consecutive five-year term
as to Count II, and to concurrent five- and three-year terms of
supervised release.
II. SUFFICIENCY OF THE FACTUAL BASIS FOR THE PLEA
Rivas argues that the district court erred in finding that
there was a sufficient factual basis for his plea of guilty to the
offense of using or carrying a firearm during a drug trafficking
offense in violation of 18 U.S.C. § 924(c). The district court's
acceptance of a guilty plea is considered a factual finding that
there is an adequate basis for the plea. We therefore review this
finding for clear error. United States v. Adams, 961 F.2d 505, 509
(5th Cir. 1992).
Section 924(c)(1) provides, in pertinent part, that:
Whoever, during and in relation to any crime of violence
or drug trafficking crime . . . for which he may be
prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years
. . . .
Relying on the recent Supreme Court decision in Bailey v.
United States, __ U.S. __, 116 S.Ct. 501 (1995), Rivas contends
that the factual basis for the guilty plea is insufficient to show
that he "used" a firearm during the offense. In Bailey, the
Supreme Court held that "§ 924(c)(1) requires evidence sufficient
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to show an active employment of the firearm by the defendant, a use
that makes the firearm an operative factor in relation to the
predicate offense." 116 S.Ct. at 505 (emphasis in opinion). The
Court then set forth examples of activities that constitute active
employment of a firearm, including brandishing, displaying,
striking with, and of course, firing or attempting to fire the gun.
In the instant case, at the rearraignment, while detailing the
factual basis for the plea, the Government stated that "[a]t the
time [Rivas] was arrested he was carrying a 9mm Beretta in the
front of his pants, which he had his hand on when the officer
convinced him that probably wouldn't be a good idea." The district
court subsequently inquired whether the facts recited by the
Government were true, and Rivas replied "[n]o." Defense counsel
explained that "[t]he only thing he is saying, Judge, is that the
pistol he had was underneath the seat. He is saying it was
underneath the seat as opposed to being in the front of his pants."
(emphasis added). The district court responded that for the
purposes of the guilty plea, it "doesn't matter." (emphasis
added).
It is clear that, because the rearraignment was held prior to
Bailey, the district court, at that time, was correct. Our prior
cases held that all that was needed to establish "use" was "that
the firearm was available to [the defendant] to facilitate the
commission of an offense." United States v. Rocha, 916 F.2d 219,
237 (5th Cir. 1990), cert. denied, 500 U.S. 934, 111 S.Ct. 20574
(1991) (citation omitted).1 We need not determine whether Rivas
used his firearm in relation to this offense. In this regard, we
note that the Supreme Court in Bailey remanded the case for
consideration whether the evidence satisfied the "carrying" prong
of § 924(c). Rivas pleaded guilty to count two of the indictment,
which charged him with using or carrying a firearm. Accordingly,
we must determine whether the factual basis is sufficient to meet
the "carrying" requirement of § 924(c). If so, the district
court's response of it "doesn't matter" would be correct in this
case.
As recognized by the Eleventh Circuit, because Bailey did not
address the "carrying" requirement, prior precedent analyzing that
prong was "not affected." United States v. Farris, 77 F.3d 391,
395 n.4 (11th Cir. 1996). Prior to Bailey, in United States v.
Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir.), cert. denied, 504 U.S.
928 (1992), we examined the "carrying" requirement of § 924(c) and
explained that the "word ``carry' derives from the french carier,
which means ``to transport in a vehicle." (quoting Webster's Third
International Dictionary 353 (1966)). Webster provided the
following definitions of "carry": "``to move while supporting (as
in a vehicle or in one's hands or arms): move an appreciable
distance without dragging: sustain as a burden or load and bring
along to another place.'" Id. We observed that the legislative
history did not indicate that the word "carry" should be given any
1
Bailey is applicable to this case because a newly announced
rule applies to a criminal case on direct appeal. Griffith v.
Kentucky,
479 U.S. 314, 107 S.Ct. 708 (1987).
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meaning but its ordinary or literal meaning. Significantly, we
also recognized that carrying on the person is different from
carrying in a vehicle "because the means of carrying is the vehicle
itself." Thus, we held that the "carrying" requirement of § 924(c)
is met "if the operator of the vehicle knowingly possesses the
firearm in the vehicle during and in relation to a drug trafficking
crime." Id. at 104. Accord United States v. Speer, 30 F.3d 605,
612 (5th Cir. 1994), cert. denied, __ U.S. __, 115 S.Ct. 768(1995); United States v. Ruiz, 986 F.2d 905, 910 (5th Cir.), cert.
denied, __ U.S. __, 114 S.Ct. 145 (1993).
Although Rivas was a passenger rather than the driver of the
vehicle, we do not believe that such a distinction means that he
was not "carrying" the firearm. At his rearraignment, Rivas did
not contest the part of the factual basis indicating that he
apparently was going for the gun "when the officer convinced him
that probably wouldn't be a good idea." "The only thing" Rivas
disputed was that the gun was in the waistband of his pants. At
sentencing, Rivas admitted that "the pistol he had was underneath
the seat." (emphasis added). In his written objections, Rivas
stated "that the pistol he had in his possession was placed
underneath the car seat." He therefore admitted to knowingly
possessing the firearm in the vehicle. Further, it is undisputed
that he had the gun during or in relation to the drug trafficking
offense. As such, Rivas's actions were sufficient to constitute
carrying under § 924(c).
III. SENTENCING CHALLENGES
Rivas also challenges his sentence for conspiracy to possess
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with intent to distribute cocaine. We find that Rivas's complaints
that the district court erred in denying him a reduction for
acceptance of responsibility and in failing to make express
findings regarding the amount of cocaine attributable to him are
without merit. We note that the district court did not clearly err
in denying him the reduction for acceptance of responsibility
inasmuch as the record reflects that Rivas attempted to trivialize
and mitigate his significant role in the conspiracy. Further, the
district court adopted the findings of the PSR, which clearly
reflects that 27 kilograms of cocaine were reasonably foreseeable
to him.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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