Juan Zuniga-Hernandez v. Rudy Childress , 548 F. App'x 147 ( 2013 )


Menu:
  •      Case: 12-40176      Document: 00512459932         Page: 1    Date Filed: 12/04/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 12-40176                          December 4, 2013
    Lyle W. Cayce
    Clerk
    JUAN JOSE ZUNIGA-HERNANDEZ,
    Petitioner-Appellant
    v.
    RUDY CHILDRESS, Warden,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 1:11-CV-295
    Before KING, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Petitioner Juan Jose Zuniga-Hernandez appeals the district court’s
    dismissal of his 
    28 U.S.C. § 2241
     petition. He argues that his conviction for
    using and carrying firearms and machineguns during and in relation to a drug
    trafficking crime in violation of 
    18 U.S.C. § 924
    (c)(1) is rendered invalid by the
    Supreme Court’s decision in Watson v. United States, 
    552 U.S. 74
     (2007). For
    the reasons that follow, the district court’s judgment is AFFIRMED.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-40176    Document: 00512459932     Page: 2   Date Filed: 12/04/2013
    No. 12-40176
    I. FACTUAL AND PROCEDURAL BACKGROUND
    The factual background of Zuniga’s offense is fully discussed in our prior
    decision addressing his direct appeal. See United States v. Zuniga, 
    18 F.3d 1254
    , 1256–57 (5th Cir. 1994). Of relevance here is that on December 10, 1992,
    Zuniga and his father met with undercover agents and a cooperating individual
    in Jefferson Parish, Louisiana. There, Zuniga was shown various firearms.
    Zuniga inspected the weapons and agreed to accept several as partial payment
    for four ounces of heroin given to the cooperating individual earlier that day.
    Zuniga helped load the firearms, including two machineguns, into the trunk of
    an automobile that Zuniga had been led to believe would take the weapons
    back to Houston, Texas. The undercover agents then drove Zuniga and his
    father to another location where the agents represented that Zuniga would
    receive the remaining payment. Zuniga was then arrested.
    On February 17, 1993, a grand jury returned a four-count superseding
    indictment charging Zuniga with conspiracy to distribute heroin, distribution
    of heroin, using and carrying firearms and machineguns during and in relation
    to a drug trafficking crime, and possession of machineguns. After Zuniga
    pleaded guilty to all four counts, the district court sentenced him to concurrent
    seventy-eight-month sentences on Counts 1, 2, and 4, and to a consecutive
    thirty-year sentence on Count 3.
    On direct appeal, Zuniga challenged his conviction on Count 3 arguing
    that “bartering drugs for weapons did not constitute ‘use’ of a weapon within
    the context of [§] 924(c)(1).” Zuniga, 
    18 F.3d at 1257
    . Relying on the Supreme
    Court’s decision in Smith v. United States, 
    508 U.S. 223
     (1993), which held that
    using a firearm in a guns-for-drugs trade could constitute “use” under
    § 924(c)(1), we affirmed Zuniga’s sentence. Zuniga, 
    18 F.3d at
    1258–59.
    Zuniga thereafter repeatedly (and unsuccessfully) challenged his
    § 924(c)(1) conviction. In 1996, we affirmed dismissal of his 
    28 U.S.C. § 2255
    2
    Case: 12-40176       Document: 00512459932          Page: 3     Date Filed: 12/04/2013
    No. 12-40176
    motion, in which he argued that his conviction “resulted from a judicial
    enlargement of the statute in violation of the ex post facto clause.” United
    States v. Hernandez, 
    79 F.3d 1144
     (5th Cir. 1996) (unpublished table decision)
    (per curiam). In 2006, we affirmed the district court’s dismissal of Zuniga’s
    § 2241 petition challenging his § 924(c)(1) conviction based on the Supreme
    Court’s decision in Bailey v. United States, 
    516 U.S. 137
    , 143 (1995). 1 See
    Zuniga-Hernandez v. Childress, 205 F. App’x 236, 237 (5th Cir. 2006)
    (unpublished) (per curiam).
    Following the Supreme Court’s decision in Watson, Zuniga again sought
    relief, this time in the Eastern District of Louisiana.                  The district court
    construed Zuniga’s filing as a successive 
    28 U.S.C. § 2255
     motion and
    transferred it to this court for consideration as a motion for authorization to
    file a successive § 2255 motion. We denied authorization to file a successive
    § 2255 motion because Zuniga had failed to show that Watson set forth a new
    rule of constitutional law and that the Supreme Court made Watson retroactive
    to cases on collateral review. In re Zuniga-Hernandez, No. 09-31213 (5th Cir.
    Apr. 6, 2010) (per curiam). Subsequently, we again denied Zuniga leave to file
    a successive § 2255 motion on the ground that Watson did not set forth a new
    rule of constitutional law. In re Zuniga, No. 11-30135 (5th Cir. Apr. 27, 2011)
    (per curiam).
    In June 2011, Zuniga filed the present § 2241 petition and once again
    argued that under Watson he was serving a prison sentence for a nonexistent
    offense. The district court referred the petition to a magistrate judge who
    recommended that the petition be dismissed. The magistrate judge reasoned
    that Watson was distinguishable because Zuniga also pleaded guilty to
    1 While incarcerated in the Southern District of Illinois, Zuniga filed a separate § 2241
    petition. See Hernadez v. Gilkey, 
    242 F. Supp. 2d 549
     (S.D. Ill. 2001). The district court
    dismissed the petition for lack of subject matter jurisdiction. 
    Id.
     at 554–55.
    3
    Case: 12-40176    Document: 00512459932     Page: 4    Date Filed: 12/04/2013
    No. 12-40176
    carrying firearms and “the Supreme Court did not rule [on] whether a
    defendant who came into possession of a firearm by trading drugs for it could
    be convicted of carrying a firearm in connection with a drug trafficking
    offense.” Over objections, the district court adopted the magistrate judge’s
    report and recommendation. Zuniga timely appealed.
    II. STANDARD OF REVIEW
    We review a district court’s dismissal of a § 2241 petition de novo.
    Garland v. Roy, 
    615 F.3d 391
    , 396 (5th Cir. 2010).
    III. DISCUSSION
    On appeal, Zuniga contends that his § 2241 petition should be granted
    because Watson makes clear that he did not “use” a firearm under § 924(c)(1).
    He further argues that the district court accepted his guilty plea only as to his
    use of firearms and that the factual record does not support his conviction for
    “carrying” firearms. The government responds that Watson only discussed the
    “use” aspect of § 924(c)(1) and that a review of the facts underlying Zuniga’s
    conviction clearly shows that Zuniga was “carrying” a firearm. We conclude
    that the district court correctly dismissed Zuniga’s § 2241 petition.
    A federal prisoner may attack the validity of his conviction in a § 2241
    petition if he can meet the requirements of 
    28 U.S.C. § 2255
    ’s savings clause.
    Kinder v. Purdy, 
    222 F.3d 209
    , 212 (5th Cir. 2000) (per curiam). To do so, the
    prisoner must show that the § 2255 remedy is “inadequate or ineffective to test
    the legality of his detention.” Reyes-Requena v. United States, 
    243 F.3d 893
    ,
    901 (5th Cir. 2001) (emphasis omitted) (quoting 
    28 U.S.C. § 2255
    ). This court
    has interpreted § 2255 as setting forth the following three requirements for
    proceeding under § 2241:
    (1) the petition raises a claim that is based on a retroactively
    applicable Supreme Court decision; (2) the claim was previously
    foreclosed by circuit law at the time when [it] should have been
    raised in petitioner’s trial, appeal, or first § 2255 motion; and (3)
    4
    Case: 12-40176       Document: 00512459932          Page: 5     Date Filed: 12/04/2013
    No. 12-40176
    that retroactively applicable decision establishes that the
    petitioner may have been convicted of a nonexistent offense.
    Garland, 
    615 F.3d at 394
     (quoting Reyes-Requena, 
    243 F.3d at 904
    ) (alteration
    in original) (internal quotation marks omitted).
    Assuming arguendo that Zuniga’s reliance on Watson satisfies the first
    two requirements of § 2255’s savings clause, we focus our analysis on whether
    Zuniga’s conviction on Count 3 was based on a “nonexistent offense.” Reyes-
    Requena, 
    243 F.3d at 904
    . The Supreme Court in Watson held that a defendant
    who receives a firearm in exchange for drugs does not “use” the firearm within
    the meaning of § 924(c)(1). 
    552 U.S. at 83
    . Because he pleaded guilty only to
    using firearms in a manner the Watson Court determined could not constitute
    “use,” Zuniga maintains that he is entitled to relief.
    The problem with this argument of course is that Zuniga did not plead
    guilty merely to “use.”         As it existed at the time of Zuniga’s conviction,
    § 924(c)(1) penalized the use or carrying of a firearm “during and in relation
    to” a drug trafficking offense. 2 
    18 U.S.C. § 924
    (c)(1) (1994). We have held that
    “[w]here a conviction fails under the ‘use’ prong of § 924(c)(1) . . ., it may stand
    if the ‘carry’ prong is satisfied.” United States v. Schmalzried, 
    152 F.3d 354
    ,
    356 n.4 (5th Cir. 1998) (per curiam) (citation omitted); see United States v. Still,
    
    102 F.3d 118
    , 124 (5th Cir. 1996) (“A disjunctive statute may be pleaded
    conjunctively and proved disjunctively.”).
    Here, Zuniga pleaded guilty to both using and carrying firearms. Count
    3 of the superseding indictment stated that
    On or about the 10th of December, 1992, in the Eastern District of
    Louisiana, the defendants, JUAN JOSE ZUNIGA-HERNANDEZ
    and SALVADOR ZUNIGA-GONZALES, did knowingly use and
    2Congress subsequently amended § 924(c)(1) to provide increased penalties for anyone
    who “uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.”
    United States v. Cole, 423 F. App’x 452, 460 n.2 (5th Cir. 2011) (unpublished) (per curiam)
    (internal quotation marks and citation omitted).
    5
    Case: 12-40176        Document: 00512459932           Page: 6     Date Filed: 12/04/2013
    No. 12-40176
    carry firearms . . . during and in relation to drug trafficking
    crimes . . . in violation of Title 18, United States Code, Section
    924(c)(1).
    (emphasis added). 3 The rearraignment transcript likewise shows that the
    district court, in reading the superseding indictment, stated that Count 3
    charged that Zuniga “did knowingly use and carry firearms.”                        Lastly, the
    presentence investigation report (which Zuniga attaches to his petition and to
    which he did not object) mirrors the indictment’s language and states that
    Zuniga “did knowingly use and carry firearms . . . during and in relation to
    drug trafficking crimes, i.e. conspiracy to distribute heroin and
    distribution of heroin.”
    Even this court has taken note of the fact that Zuniga’s guilty plea was
    not limited merely to “use.” Indeed, we rejected Zuniga’s prior § 2241 petition
    for that very reason. In 2004, Zuniga filed a § 2241 petition challenging his
    § 924(c)(1) conviction in light of Bailey, wherein the Supreme Court held that
    “use” required evidence sufficient to show “active employment of the firearm by
    the defendant.” 
    516 U.S. at 143
     (emphasis in original). We affirmed the
    district court’s dismissal of the § 2241 petition on the ground that Zuniga
    “pleaded guilty to using and carrying firearms and machineguns during and
    in relation to a drug trafficking crime.” Zuniga-Hernandez, 205 F. App’x at
    237 (emphasis added).            Because “Bailey did nothing to affect [Zuniga’s]
    conviction for carrying firearms and machineguns,” Zuniga could not show that
    he was convicted of a nonexistent offense. Id. (emphasis added).
    Although Zuniga now relies on Watson, instead of Bailey, his argument
    remains the same—that the Supreme Court has interpreted § 924(c)(1) in a
    3 Although the superseding indictment was not included in the parties’ briefs, we take
    judicial notice of it. Fed. R. Evid. 201; see United States v. Elashyi, 
    554 F.3d 480
    , 501 n.9 (5th
    Cir. 2008).
    6
    Case: 12-40176     Document: 00512459932       Page: 7   Date Filed: 12/04/2013
    No. 12-40176
    manner inconsistent with his conviction under the “use” prong. As before,
    because Zuniga pleaded guilty to both using and carrying firearms, the fact
    that his conviction under one prong may be invalid does not entitle him to
    relief. See Still, 
    102 F.3d at
    124–25.
    Moreover, we reject Zuniga’s argument that the facts of his case are
    insufficient to support his conviction under § 924(c)(1)’s “carry” prong. “It is
    clear that our jurisprudence in a non-vehicle context requires both that the
    weapon be moved in some fashion and that it be within arm’s reach (readily
    accessible) for a violation of the ‘carry’ prong of § 924(c)(1).” United States v.
    Wainuskis, 
    138 F.3d 183
    , 187 (5th Cir. 1998). Further, the weapon must be
    “moved or transported in some manner, or borne on one’s person, during and
    in relation to the commission of the drug offense.” Schmalzried, 
    152 F.3d at
    356–57 (emphasis added). The Supreme Court has stated that “[t]he phrase
    ‘in relation to’ is expansive,” and interpreted it to mean that “the firearm must
    have some purpose or effect with respect to the drug trafficking crime; its
    presence or involvement cannot be the result of accident or coincidence.”
    Smith, 
    508 U.S. at 238
    ; see also Muscarello v. United States, 
    524 U.S. 125
    , 137
    (1998) (“Congress added these words in part to prevent prosecution where guns
    ‘played’ no part in the crime.”).
    Here, in the course of negotiating a heroin sale, Zuniga inspected several
    firearms offered by the undercover officers. He agreed to accept some of them
    in exchange for a partial credit against the amount owed for the heroin. He
    then helped pack the firearms into bags. Finally, he helped load the weapons
    into a vehicle he believed would take the guns back to Houston. Under these
    facts, we have little difficulty in finding that the evidence supporting Zuniga’s
    7
    Case: 12-40176        Document: 00512459932          Page: 8     Date Filed: 12/04/2013
    No. 12-40176
    guilty plea under § 924(c)(1)’s “carry” prong is sufficient. 4 See Wainuskis, 
    138 F.3d at
    187–88; see also Balderas v. Young, 202 F. App’x 745, 747 (5th Cir.
    2006) (unpublished) (per curiam) (evidence showing that defendant delivered
    murder weapon to coconspirator to shoot intended victim in murder-for-hire
    scheme was sufficient to support conviction under “carry” prong).
    IV. CONCLUSION
    For the aforementioned reasons, the district court’s judgment is
    AFFIRMED.
    4 We recognize that several courts have interpreted Watson to apply to both the “use”
    and “carry” prongs in the context of a drugs-for-guns trade. See United States v. Carillo-
    Ayala, 
    713 F.3d 82
    , 96 n.12 (11th Cir. 2013) (remarking in dicta that under Watson “a
    defendant who receives a firearm in exchange for drugs does not use or carry a firearm during
    and ‘in relation to’ a drug trafficking crime.” (emphasis in original)); United States v.
    Campbell, 436 F. App’x 518, 527 (6th Cir. 2011) (unpublished) (interpreting Watson to mean
    that “a defendant cannot be convicted under the ‘uses or carries’ prong of § 924(c) simply by
    engaging in a barter transaction in which the defendant exchanges drugs for a firearm”);
    United States v. Woods, No. 5:03cr30054-1, 
    2010 WL 4878447
    , at *2 (W.D. Va. Nov. 24, 2010)
    (unpublished). These decisions are neither binding on us nor appear precedential within
    their own circuits. They also are not representative of many other decisions that have, in our
    view, correctly recognized Watson’s narrow scope. See, e.g., Fuller v. United States, 
    849 F. Supp. 2d 635
    , 641–43 (W.D. Va. 2012) (Watson only “eliminated one narrow form of ‘use’
    under § 924(c)—use of a firearm as an item of barter in exchange for drugs”); Bogardus v.
    United States, Nos. CV 110-115, CR 105-014, 
    2012 WL 292870
    , at *8 (S.D. Ga. Jan. 4, 2012)
    (unpublished) (“[T]he holding [in] Watson has no bearing on the verb ‘carrying.’”), report and
    recommendation adopted by 
    2012 WL 289874
     (S.D. Ga. Jan. 31, 2012); Winkelman v. Holt,
    No. 4:CV-09-0300, 
    2009 WL 1314864
    , at *8–9 (M.D. Pa. May 8, 2009) (unpublished)
    (dismissing habeas petition because although Watson “held that a person trading his drugs
    for firearms did not ‘use’ a firearm . . . [Petitioner] was charged and convicted of not only
    using a firearm but with carrying and possessing firearms”). In any event, our ruling is
    limited to finding that on the facts of this case the district court correctly dismissed Zuniga’s
    § 2241 petition. See Schmalzried, 
    152 F.3d at
    357–58 (remanding for entry of a new plea
    where “record’s silence render[ed] a critical element of a ‘carry’ offense under § 924(c)(1)
    unsatisfied”). We express no opinion as to whether a defendant engaged in a drugs-for-guns
    transaction would fall under § 924(c)(1)’s “carry” prong where he did not inspect, handle, and
    pack the firearms himself. See Bailey, 
    516 U.S. at 146
     (“Under the interpretation we
    enunciate today, a firearm can be used without being carried, e.g., when an offender has a
    gun on display during a transaction, or barters with a firearm without handling it . . . .”
    (emphasis added)).
    8