Tannenbaum v. United States , 148 F.3d 1262 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 97-4441
Non-Argument Calendar.
Eric Mark TANNENBAUM, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
Aug. 4, 1998.
Appeal from the United States District Court for the Southern District of Florida. (Nos. 92-6175-CR-
JAG & 96-6324-CIV-JAG), Jose A. Gonzalez, Judge.
Before GODBOLD, HILL and FAY, Senior Circuit Judges.
PER CURIAM:
Eric Mark Tannenbaum appeals the district court's denial of his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence for the violation of 18 U.S.C. § 924(c)(1) (possession of a
firearm during a drug-trafficking offense).
On appeal, Tannenbaum argues that when he pled guilty to carrying and using a firearm in
violation of § 924, his plea was based solely on the law before the clarification in Bailey v. United
States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995)(requiring proof of active employment
of the firearm in the commission of the offense to establish "use" under 18 U.S.C. § 924(c)(1)). He
also argues that because of the Supreme Court's recent holding in Bousley v. United States, --- U.S.
----, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998), even though his claim was procedurally defaulted by
not challenging the validity of his guilty plea on appeal, if he can establish "actual innocence," he
may still be entitled to a hearing on its merits.
In a § 2255 proceeding, this Court reviews factual findings for clear error while it reviews
legal issues de novo. Martin v. United States, 81 F.3d 1083, 1084 (11th Cir.1996); Fernandez v.
United States, 941 F.2d 1488, 1491 (11th Cir.1991). Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally construed. Fernandez,
941 F.2d at 1491. But, issues not raised below are normally deemed waived. See generally United
States v. Everett, 129 F.3d 1222, 1225 (11th Cir.1997). "[T]he voluntariness and intelligence of a
guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley,
118 S. Ct. at 1609.
We have reviewed the applicable statutes and caselaw, examined the relevant portions of the
record, and considered the briefs of the parties; we find no reversible error.
Because Bailey discussed only the "use" prong of § 924(c), it did not change the analysis
to be applied to determine whether evidence is sufficient to convict a defendant for "carrying" a
firearm under § 924(c). See United States v. Farris, 77 F.3d 391, 395 & n. 4 (11th Cir.), cert.
denied, --- U.S. ----, 117 S. Ct. 241, 136 L. Ed. 2d 170 (1996). In order to convict a defendant for
"carrying" a firearm, it is necessary only to show that the defendant knowingly carried a gun in a car
that was being used as a drug-distribution center. United States v. Range, 94 F.3d 614, 617 (11th
Cir.1996)(defendant who knowingly carried a gun under the floormat of his car when delivering
drug money was properly convicted of carrying a firearm under § 924(c), even though there was
insufficient evidence to support his conviction for use of a firearm); see also, Muscarello v. United
States, --- U.S. ----, 118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998) (holding the phrase "carries a firearm"
is not limited to the carrying of firearms on the person, but also applies to a person who knowingly
possesses firearms in a vehicle, including in the locked glove compartment or trunk of a car).
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In Bousley, --- U.S. at ----, 118 S. Ct. at 1607, Bousley contended that neither he nor his
counsel correctly understood the essential elements of the crime with which he was charged (§
924(c)(1)) and that, therefore, his plea was constitutionally invalid. The Court noted that it has long
held that "a plea does not qualify as intelligent unless a criminal defendant receives "real notice of
the true nature of the charge against him.' " Id., citing Smith v. O'Grady, 312 U.S. 329, 61 S. Ct. 572,
85 L. Ed. 859 (1941). Bousley did not challenge the validity of his plea on appeal and, by failing to
do so, procedurally defaulted his claim. Bousley, --- U.S. at ----, 118 S. Ct. at 1607. However, the
Court stated that his "claim may still be reviewed in this collateral proceeding if he can establish that
the constitutional error in his plea colloquy "has probably resulted in the conviction of one who is
innocent.' " Id., citing Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397.
The Court went on to explain that to establish "actual innocence," the petitioner must demonstrate
that, "in light of all the evidence, it is more likely than not that no reasonable juror would have
convicted him." Bousley, --- U.S. at ----, 118 S. Ct. at 1607, citing Schlup v. Delo, 513 U.S. 298,
327-328, 115 S. Ct. 851, 867-868, 130 L. Ed. 2d 808 (1995).
Tannenbaum asserts that he did not carry a gun "in relation to" a drug-trafficking offense.
In support of this, he claims that the loaded weapon was "inadvertently" in the waistband of his
pants when the drug transaction occurred and that he did not "intend" for the gun to be part of the
drug transaction.
Neither the defendant's subjective intention for the weapon nor the alleged inadvertency of
its presence was a factor in this Court's determination in Range that the defendant was "carrying"
a firearm during and in relation to a drug-trafficking offense. Range, 94 F.3d at 617. Range held
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that in order to convict a defendant for carrying a firearm, it is necessary only to show that the
defendant was "knowingly" carrying a gun when the drug transaction occurred. Id.
At his change-of-plea hearing, Tannenbaum admitted to carrying a loaded weapon in his
waistband during the drug transaction. According to Range, this fact is enough to convict
Tannenbaum under the "carry" prong of § 924(c). Id.
Therefore, because Tannenbaum cannot demonstrate that he is innocent of the "carry" prong
of § 924(c), he may not rely upon Bousley to have his defaulted claim of an unintelligent plea
considered on its merits.
Because Bailey, 516 U.S. at 137, 116 S.Ct. at 501, only affects convictions based upon the
"use" prong of § 924(c)(1), and because Tannenbaum cannot demonstrate that he is innocent of the
"carry" prong of § 924(c)(1), he may not rely upon Bousley, --- U.S. at ----, 118 S. Ct. at 1604, to
have his defaulted claim of an unintelligent plea considered on its merits. Accordingly, the district
court did not clearly err in denying Tannenbaum's § 2255 motion to vacate, set aside, or correct his
sentence for the violation of 18 U.S.C. § 924(c)(1).
AFFIRMED.
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