United States v. Gobert ( 1998 )

REVISED, April 16, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-30131
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ROGER GOBERT,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
March 31, 1998
Before WISDOM, SMITH, and DEMOSS, Circuit Judges.
WISDOM, Senior Circuit Judge:
I. Introduction
James Roger Gobert pleaded guilty to a one-count Bill of
Information charging him with using and carrying a firearm during
and in relation to a drug-trafficking offense, in violation of 18
U.S.C. § 924(c)(1).1 The district court imposed a 36-month term of
imprisonment, to be followed by a three-year period of supervised
release. Subsequent to Gobert’s conviction, the Supreme Court
1
The statute reads, in pertinent part: “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.”
decided Bailey v. United States.2 In Bailey, the Court held that
the Government, to sustain a conviction under the “use” prong of 18
U.S.C. § 924(c)(1), must prove that the defendant actively employed
a firearm during the predicate drug offense.3 Gobert filed a
motion to vacate his sentence under 28 U.S.C. § 2255 on the ground
that his pre-Bailey conviction could no longer stand in light of
the Supreme Court’s interpretation of § 924(c)(1).4 His argument,
construed liberally,5 is that he was wrongfully convicted under the
“use” prong of § 924(c)(1) because the district court failed to
develop an adequate factual basis to support his guilty plea. The
district court denied Gobert’s motion and denied his request for a
certificate of appealability (COA). Gobert now petitions this
Court to issue a COA and vacate his sentence. For the reasons that
follow, we grant a COA, vacate Gobert’s conviction, and remand this
case to the district court for the entry of a new plea.
II. Background
The charges against defendant/appellant James Gobert arose
out of a “dry reverse” conducted by an undercover agent of the
Beauregard Parish Sheriff’s Office. The agent was driving in
Lake Charles, Louisiana with a known substance abuser when Alfred
2
116 S. Ct. 501 (1995).
3
Id. at 509.
4
We have already determined that Bailey applies retroactively
to cases on collateral review. See United States v. McPhail, 112
F.3d 197, 199 (5th Cir. 1997).
5
We construe liberally the claims of pro se appellants.
Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993).
2
“Slick” Henry approached the two men and offered to sell them a
kilogram of cocaine. The undercover agent accepted the offer,
and Henry made several telephone calls to arrange a meeting
during which the transaction could be consummated. Henry then
told the agent that he and his associates would prefer to
purchase a kilogram of cocaine. Two vehicles appeared at the
meeting. James Gobert and Alfred Henry occupied one, and the
appellant’s cousin, David Gobert, and Pamela Jones occupied the
other. All four were arrested after agreeing to buy one kilogram
of cocaine from the undercover agent.6 David Gobert and Jones
had a total of $17,890 in cash on their persons, and agents
recovered a .45 caliber pistol, the firearm that generated the §
924(c)(1) charge, from David Gobert’s car.7
III. Discussion
We review the district court’s findings of fact in relation
to a motion filed under § 2255 for clear error, and we review
questions of law de novo.8
A. Appealability
We will reach the merits of James Gobert’s contentions only
if we first determine that a COA should issue with respect to his
post-Bailey claim. On April 24, 1996, the President signed into
6
David Gobert pleaded guilty to a one-count Bill of
Information that was identical in all respects to that pleaded to
by appellant James Gobert.
7
The record does not indicate the precise location of the
gun. It is unclear whether the gun was located in the cabin of the
vehicle or in the trunk.
8
United States v. Guerra, 94 F.3d 989, 992 (5th Cir. 1996).
3
effect the Antiterrorism and Effective Death Penalty Act
(AEDPA).9 The AEDPA amended 28 U.S.C. § 2253, the gatekeeping
statute that governs the appealability of district court orders
in § 2255 proceedings. As amended, § 2253 requires that either
the district or circuit court issue a COA before the circuit
court may consider the merits of a prisoner’s appeal of the
denial of § 2255 relief. Most importantly, the amended version
of § 2253 permits us to grant a petition for a COA only if the
applicant has made a substantial showing of the denial of a
constitutional right.10 At issue in this case, then, is whether
James Gobert has made such a showing. We believe that he has,
and that he is therefore entitled to a COA.
The gravamen of James Gobert’s complaint is that his
continued incarceration for engaging in conduct that did not
violate the terms of § 924(c)(1), as defined by the Supreme
Court, constitutes a violation of his due process rights. We
interpret his argument to be that even though Bailey is not
itself a case of constitutional dimension, its effect upon the
legality of his continued incarceration is indeed of
constitutional magnitude.
Many courts, including this court, have stated that Bailey
announced only a new statutory interpretation, and not a rule of
9
James Gobert filed his § 2255 petition with the district
court on November 13, 1996, several months after the AEDPA went
into effect. As such, we review his claim under the new statutory
standards set forth below.
10
See 28 U.S.C. § 2253(c)(2).
4
constitutional law.11 We continue to abide by this proposition.
In Hohn v. United States, however, the Eighth Circuit parlayed
this understanding into an entirely different proposition with
which we cannot agree-- that a prisoner who challenges his
conviction in light of the new standards articulated in Bailey is
not entitled to a COA.12 It refused to issue a COA to a post-
Bailey petitioner because “[he was] not making a constitutional
claim. He [was] making a claim to a federal statutory right.”13
We do not so characterize James Gobert’s contention. Even
though Bailey itself is a statutory, non-constitutional case, it
does not necessarily follow that a prisoner’s post-Bailey
petition for collateral relief sounds in statutory, non-
constitutional law. We conclude, in fact, that the claim falls
squarely within the ambit of the Fifth Amendment.14 Indeed, the
well-settled caselaw of this and other courts compels such a
conclusion. We have stated that if a defendant has been
11
McPhail, 112 F.3d at 199; Triestman v. United States, 1997
WL 529622 (2d Cir.); In re Dorsainvil, 1997 WL 409442 at 3
(3d Cir.); In re Vial, 115 F.3d 1192, 1195 (4th Cir. 1997); United
States v. Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997); Hohn v.
United States, 99 F.3d 892, 893 (8th Cir. 1996); In re Blackshire,
98 F.3d 1293, 1294 (11th Cir. 1996). Triestman, Dorsainvil,
Lorentsen, and Blackshire were all decided in the context of
successive § 2255 petitions.
12
Hohn, 99 F.3d at 893.
13
Id.
14
Judge McMillian, dissenting from the majority’s opinion,
concluded that “depriving persons of the benefit of the delayed
notice that conduct is innocent violates due process by tolerating
convictions for conduct that was never criminal. Under that
proposition, a post-Bailey § 2255 motion presents a constitutional
question as required by § 2253(c)(2).” Id. at 895.
5
convicted of a criminal act that becomes no longer criminal, such
a conviction cannot stand.15 After all, a refusal to vacate a
sentence where a change in the substantive law has placed the
conduct for which the defendant was convicted beyond the scope of
a criminal statute would result in a complete miscarriage of
justice.16 Our sister circuits have held that a fundamental
defect resulting in a complete miscarriage of justice is
tantamount to a violation of the Due Process Clause of the Fifth
Amendment.17 As we stated earlier, James Gobert maintains that
he was convicted and imprisoned for engaging in conduct that the
Supreme Court has since deemed non-criminal. If he is correct,
our refusal to vacate his sentence would result in a complete
miscarriage of justice; such a result would offend the Due
Process Clause of the Fifth Amendment. The foregoing authorities
make it clear to us that James Gobert has made a substantial
showing of the denial of his constitutional rights to due
15
United States v. Shaid, 916 F.2d 984, 987 (5th Cir. 1990).
16
United States v. Addonizio, 442 U.S. 178, 186-87 (1979);
Shaid, 916 F.2d at 987.
17
Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996);
Johnson v. United States, 805 F.2d 1284, 1287 (7th Cir. 1986). See
also Larkins v. State of Michigan, 859 F.2d 152 (6th Cir. 1988)
(“the petitioner has failed to establish prejudice amounting to a
fundamental defect resulting in a complete miscarriage of justice.
In fact, the petitioner has not shown any prejudice whatsoever that
would call into question the validity of his conviction.
Therefore, he was not denied due process.”); Bachner v. United
States, 517 F.2d 589, 598, 599 (7th Cir. 1975) (Stevens, J.,
concurring) (“any procedural error sufficiently serious to be
characterized as a fundamental defect which inherently results in
a complete miscarriage of justice would have violated the Due
Process Clause and therefore created constitutional error
justifying a collateral attack pursuant to § 2255").
6
process, notwithstanding that Bailey announced merely a new
statutory interpretation. Accordingly, we issue a COA and
advance to the merits of his claim.18
B. The Merits
Having granted the request for a COA, we must now decide
whether his conviction and sentence can stand in light of Bailey.
The government, in order to support a conviction under §
924(c)(1), was required to prove that James Gobert either used or
carried a firearm during and in relation to the underlying drug
offense;19 it need not have proved both.20 The district court
concluded, and the government argues, that even though the
evidence did not support a conviction under the newly-interpreted
“use” prong of § 924(c)(1), the evidence was more than sufficient
to convict James Gobert under the “carry” prong of § 924(c)(1),21
and specifically under established rules of co-conspirator
18
The district court erroneously denied Gobert’s request for
a COA on the basis of its conclusion that the issues presented in
his § 2255 motion were not cognizable. “Section 2255 provides
recourse only for transgressions of constitutional rights and for
that narrow compass of other injury that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v. Smith, 32 F.3d 194, 196
(5th Cir. 1994). For the reasons stated above, § 2255 is an
appropriate vehicle for the resolution of James Gobert’s
constitutionally-based claim.
19
United States v. Branch, 91 F.3d 699, 732 (5th Cir. 1996).
20
United States v. Pigrum, 922 F.2d 249, 253 (5th Cir. 1991).
21
Bailey did not affect the “carry” prong of § 924(c)(1).
Previous precedent with respect to that prong remains unaffected.
United States v. Rivas, 85 F.3d 193, 195 (5th Cir. 1996).
7
liability.22 In order to address this contention, we must
examine carefully the facts underlying James Gobert’s guilty
plea.
A court cannot accept a guilty plea unless there is a
sufficient factual basis for the plea.23 The factual basis must
be evident in the record and must be sufficiently specific to
allow the court to determine whether the defendant’s conduct was
within the ambit of the statute’s prohibitions.24 The district
court’s acceptance of a guilty plea, governed by Rule 11 of the
Federal Rules of Criminal Procedure,25 is a factual finding that
we review for clear error.26
“Relief from a formal or technical violation of Rule 11 is
not available in a § 2255 collateral attack, but instead is
22
Pinkerton v. United States, 328 U.S. 640 (1946). In
Pinkerton, the Supreme Court held that “a party to a conspiracy may
be held responsible for a substantive offense committed by a
coconspirator in furtherance of a conspiracy, even if that party
does not participate in or have any knowledge of the substantive
offense.” United States v. Jensen, 41 F.3d 946, 955-56 (5th Cir.
1994).
23
United States v. Carter, 117 F.3d 262, 264 (5th Cir. 1997).
24
Id.
25
Rule 11 provides, in pertinent part: “Before accepting a
plea of guilty, the court must address the defendant personally in
open court and inform the defendant of, and determine that the
defendant understands, the following: (1) the nature of the charge
to which the plea is offered, the mandatory minimum penalty
provided by law, if any, and the maximum possible penalty provided
by law, including the effect of any special parole or supervised
release term.”
26
Carter, 117 F.3d at 264.
8
available only upon a showing of prejudice.”27 We conclude that
James Gobert has suffered prejudice, and is therefore entitled to
relief. First, the factual basis for his guilty plea to the §
924(c)(1) charge is grossly undeveloped. The factual basis filed
by the government-- and relied upon by the district court at the
time he entered his guilty plea-- contains nothing more than the
bare assertion that “there was a .45 caliber pistol in David
Gobert’s vehicle.” Even though James Gobert admitted during the
plea colloquy that he violated § 924(c)(1), the factual basis is
devoid of evidence that he or David Gobert used or carried the
pistol in relation to the underlying drug offense.
We have stated that in the context of motor vehicles, “the
carrying requirement of § 924(c)(1) is met if the operator of the
vehicle knowingly possesses the firearm in the vehicle during and
in relation to a drug trafficking crime.”28 It remains unclear
in this Circuit whether the “carry” prong, considered in the
context of a motor vehicle case, requires the government to prove
that the firearm was within reach and available for immediate
use. In United States v. Muscarello,29 a panel of this court
found that a defendant who knowingly possessed a loaded, though
not immediately accessible, gun in the locked glove compartment
of his vehicle during and in relation to a drug transaction
27
Id.
28
Rivas, 85 F.3d at 195.
29
106 F.3d 636 (5th Cir. 1997), cert. granted, 65 U.S.L.W.
3728 (U.S. Dec. 12, 1997) (No. 96-1654).
9
carried the gun for purposes of 924(c)(1). In United States v.
Fike,30 however, we suggested that a defendant carries a firearm
within the meaning of § 924(c)(1) only if the firearm is within
reach, and therefore immediately accessible.31 Whether the
firearm at issue in this case was immediately available for David
Gobert’s use is a matter of pure conjecture. Additionally,
nothing in the record reveals the precise location from which the
pistol was recovered. Without more, and especially in light of
the apparent indeterminacy surrounding the immediate
accessibility question,32 we cannot say with any degree of
certainty that David Gobert carried a firearm for purposes of §
924(c)(1). Of course, the same rationale extends to James
Gobert, whose exposure to § 924(c)(1) liability is necessarily
predicated on the conduct of his codefendant, David Gobert.
Furthermore, even if we assume arguendo that David Gobert
knowingly transported the firearm, there is no evidence in the
record that suggests a nexus between the firearm and the drug
transaction the defendants sought to consummate. “The government
is shouldered with the burden of establishing some relationship
between the firearm [the defendant] possessed and the predicate
30
82 F.3d 1315 (5th Cir. 1996).
31
Id. At 1328 (evidence that defendant driving car with a gun
within reach to attend and later flee from an aborted drug
transaction was sufficient to support a conviction under the
“carry” prong of § 924(c)(1).
32
The Supreme Court has granted writs in Muscarello for the
purpose of resolving definitively the immediate accessibility
question. See note 29, supra.
10
drug trafficking offense.”33 It is conceivable, of course, that
a gun carried in a vehicle during a drug transaction could be
entirely unrelated to that transaction.34 Indeed, to conclude
otherwise would be to render meaningless the “in relation to”
language of § 924(c)(1) and thus violate our duty to give effect
to every clause and word of a statute.35 The record before us
merely contains evidence that a firearm was stored in David
Gobert’s vehicle during the commission of a drug trafficking
offense. It therefore cannot be said that the factual basis in
this case is sufficiently specific to have allowed the district
court to determine whether David Gobert’s conduct, theoretically
attributable to James Gobert under the Pinkerton doctrine, fell
within the ambit of 924(c)(1)’s prohibitions.36 Accordingly, it
was clear error for the district court to have accepted James
Gobert’s guilty plea.
In short, the district court accepted James Gobert’s plea in
violation of Rule 11(f). When such a violation occurs, our
33
United States v. Wilson, 884 F.2d 174, 177 (5th Cir. 1989).
34
Muscarello, 106 F.3d at 639; see also Wilson, 884 F.2d at
177 (holding that something more than strategic proximity of drugs
and firearms is necessary to honor Congress’s concerns).
35
See United States v. Menasche, 348 U.S. 528, 538-39 (1955).
36
Compare Muscarello, supra note 29 (factual basis for guilty
plea established that “located inside the glove compartment of the
Defendant Muscarello’s Ford truck was a loaded firearm which the
Defendant knowing [sic] possessed in his vehicle and carried for
protection in relation to the above described drug trafficking
offense”).
11
practice is to reverse, vacate, and remand for the entry of a new
plea.37
VACATED AND REMANDED.
37
United States v. Thompson, 1997 WL 552633 at 3 (5th Cir.).
12