United States v. Peter Nelson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3103
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Peter Nelson, *
*
Appellee. *
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Submitted: January 15, 1997
Filed: April 2, 1997
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Before BOWMAN and MURPHY, Circuit Judges, and JONES,1 District Judge.
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BOWMAN, Circuit Judge.
The United States appeals from the District Court’s order granting
Peter Nelson’s motion under 28 U.S.C. § 2255 (1994) to vacate his
conviction and sentence. We reverse and remand.
In 1992, Nelson pleaded guilty to possessing marijuana with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1) (1988), and using and
carrying a firearm during and in relation to a drug
1
The Honorable John B. Jones, United States District Judge
for the District of South Dakota, sitting by designation.
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trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Supp. III 1991).
He was sentenced to a total of sixty-four months’ imprisonment, four months
on the marijuana count and sixty months on the firearms count, plus three
years’ supervised release. He did not appeal.
Following the Supreme Court’s decision in Bailey v. United States,
116 S. Ct. 501 (1995), Nelson filed a motion under § 2255 to vacate his
conviction and sentence on the firearms count. The government resisted the
motion, conceding that Nelson did not “use” a firearm but arguing that he
did “carry” several firearms. The District Court concluded otherwise,
granted Nelson’s motion, and vacated the § 924(c) conviction and sentence.
The court resentenced Nelson to twelve months’ imprisonment on the
marijuana count but ordered him released to supervision because he had
already spent nearly three years in prison.
We have jurisdiction over the government’s appeal. See 28 U.S.C.A.
§ 2255 para. 4 (West 1994 & Supp. 1997). Because this appeal involves only
questions of law, our review is de novo. See United States v. Duke, 50
F.3d 571, 576 (8th Cir.), cert. denied, 116 S. Ct. 224 (1995).
Before turning to the merits of the Bailey issue, we note several
issues that are not before us. The government has not suggested that
recent amendments to § 2255, including a one-year period of limitation,
apply to this case. See 28 U.S.C.A. § 2255 para. 6 (West Supp. 1997).
Accordingly, we need not determine how the amendments affect § 2255 motions
filed before the amendments took effect. See Preston v. Delo, 100 F.3d
596, 599 n.4 (8th Cir. 1996) (recognizing no need to determine
retroactivity of amendments to 28 U.S.C. § 2254).
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Another issue that the government has raised is not properly before
us in this case. In its reply brief, the government argues that our
opinion in Bousley v. Brooks, 97 F.3d 284 (8th Cir. 1996), establishes that
Nelson defaulted his Bailey argument by failing to raise it on direct
appeal.2 The government acknowledges, however, that it did not present
this default argument to the District Court, and the government did not
raise it in its opening brief in this Court. We decline to reverse the
District Court on the basis of an argument not presented to it and not
properly raised here. See Ryder v. Morris, 752 F.2d 327, 332 (8th Cir.)
(recognizing that issues not raised in district court on habeas should not
be considered on appeal, absent manifest injustice), cert. denied, 471 U.S.
1126 (1985); Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994) (noting
that court of appeals has discretion to avoid deciding issues first raised
in reply brief).
We turn to the merits of Nelson’s Bailey claim. The relevant
question here is whether there was an adequate factual basis for Nelson’s
guilty plea. See Fed. R. Crim. P. 11(f). We have defined a factual basis
as “‘sufficient evidence at the time of the plea upon which a court may
reasonably determine that the defendant likely committed the offense.’”
White v. United States, 858 F.2d 416, 423 (8th Cir. 1988) (citation
omitted), cert. denied, 489 U.S.
2
We believe the government actually understates the
significance of Bousley. A defendant who pleads guilty to a
violation of § 924(c) and then fails to raise the “use” issue on
direct appeal is doubly barred from raising that issue in a
§ 2255 motion. A conviction on a guilty plea ordinarily
forecloses all issues on collateral attack except “whether the
underlying plea was both counseled and voluntary.” United States
v. Broce, 488 U.S. 563, 569 (1989); see also Bousley, 97 F.3d at
287-88. The failure to appeal the issue is also a procedural
default that bars collateral relief, absent cause and prejudice.
See Reid v. United States, 976 F.2d 446, 447-48 (8th Cir. 1992)
(citing United States v. Frady, 456 U.S. 152, 168 (1982)), cert.
denied, 507 U.S. 945 (1993); Bousley, 97 F.3d at 287-88.
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1029 (1989). Accordingly, we summarize the facts adduced at the two
hearings held by the District Court in 1992.
On February 10, 1992, a Winneshiek County sheriff’s deputy noticed
a vehicle parked in the entrance to Ft. Atkinson Park, which had closed for
the day more than an hour earlier. When the deputy approached the vehicle,
a Datsun 280-Z hatchback, he noticed a strong odor of marijuana. The
deputy eventually arrested Nelson, who was in the driver’s seat, and his
passenger, and a search of the car revealed more than 800 grams of
marijuana. In addition, the deputy discovered two unloaded shotguns in the
rear interior of the hatchback and a loaded .357 revolver in a well behind
the driver’s seat.
At his plea hearing, Nelson stated in his own words, “I’m pleading
guilty to having in my possession and my car at the time when I was picked
up two shotguns and a 357 that was in a compartment in the back hatch of
a Datsun 280-Z while having marijuana in my possession with intent to
deliver.” Plea Tr. at 23-24. When the court inquired further at the
sentencing hearing about the location of the revolver, Nelson said: “Well,
underneath that carpet [behind the seat], you lift that carpet up. Then
you open up a deal like this well. Down inside there is where that handgun
was, and it was inside of a handgun case.” Sent. Tr. at 72. Nelson also
stated that some luggage was piled on top of the carpet, further
restricting his access to the gun, but the deputy was unable to remember
whether there was luggage behind the seat. The deputy testified that
Nelson could have reached the weapon from the driver’s seat and could have
been ready to fire it within five to ten seconds.
In this proceeding, the government concedes that Nelson did not “use”
a firearm in relation to a drug trafficking crime. See
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Bailey, 116 S. Ct. at 508 (requiring active employment of firearm,
including “brandishing, displaying, bartering, striking with, and most
obviously, firing or attempting to fire”). The government argues, however,
that Nelson “carried” a firearm within the meaning of § 924(c). For
support, the government relies on our decision in United States v.
Freisinger, 937 F.2d 383 (8th Cir. 1991), in which we held that to
transport a firearm within the passenger compartment of a vehicle loaded
with drugs is to “carry” a firearm. See id. at 387. The District Court
disagreed, believing that it sensed a shift in our “carry” jurisprudence
following Bailey. In particular, the District Court relied on language
from United States v. White, 81 F.3d 80 (8th Cir. 1996). In White, the
defendant had a magazine clip in his waistband, and a semi-automatic pistol
(with the magazine missing) was found underneath his jacket, which he had
dropped during a chase. See id. at 83. We cited several dictionaries’
definitions of “carry,” each of which included language about bearing an
item “on one’s person.” See id. We then stated that “the government must
prove that White bore the firearm on or about his person.” Id. The
District Court concluded that this language indicated that we had
introduced into our § 924(c) “carry” cases a requirement that the firearm
be carried on or about the defendant’s person, and therefore, Freisinger
was no longer good law.
Since the District Court granted relief to Nelson, we have several
times reaffirmed that Freisinger remains good law after Bailey. See United
States v. Peyton, No. 96-2457, slip op. at 3 (8th Cir. Mar. 12, 1997);
United States v. Rhodenizer, 106 F.3d 222, 225 (8th Cir. 1997); United
States v. Barry, 98 F.3d 373, 377 (8th Cir. 1996), cert. denied, 117 S. Ct.
1014 (1997); United States v. Willis, 89 F.3d 1371, 1378-79 (8th Cir.),
cert. denied, 117 S. Ct. 273 (1996). We have also, tellingly, denied post-
conviction relief to Freisinger himself. See Freisinger v. United
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States, 104 F.3d 363 (8th Cir. 1996) (unpublished per curiam). We
recognize that we used language in the White opinion that seems more strict
than that used in Freisinger, but it is to be expected that when we are
concerned with a defendant who carried a weapon on his person, we will
focus on the fact that the weapon was on his person. See also United
States v. Johnson, No. 96-1843, slip op. at 3 (8th Cir. Mar. 14, 1997)
(quoting White in case where defendant had gun in pants pocket). We do not
believe that White can be fairly read to hold that, in all circumstances,
a defendant “carries” a firearm only if it is on or about his person.
Indeed, the very dictionaries we quoted in White include definitions of
“carry” broad enough to support the Freisinger rule. See Webster’s Third
New International Dictionary 343 (1981) (“to move while supporting (as in
a vehicle or in one’s hands or arms)”) (emphasis added); Black’s Law
Dictionary 214 (6th ed. 1990) (“To bear, bear about, sustain, transport,
remove, or convey.”) (emphasis added). As we said in Freisinger, “when a
motor vehicle is used, carrying a weapon takes on a less restrictive
meaning than carrying on the person. The means of carrying is the
vehicle.” Freisinger, 937 F.2d at 387 (citation and internal quotation
marks omitted). We conclude that the District Court erred in reading White
so narrowly as to displace the Freisinger rule.
Nelson argues that an additional requirement of our § 924(c) “carry”
cases--that the firearm be readily available to the defendant--was not met
in his case. We will assume, without deciding, that ready availability of
the firearm is required for a “carry” conviction in this Circuit. See
Freisinger, 937 F.2d at 388 n.4 (“[A] firearm which is carried either on
the person or in a vehicle will at best be ‘unavailable’ (and thus not
‘carried’ within the meaning of the statute) only in very rare cases, if
ever.”). Even so, the testimony of the deputy that Nelson could have had
the revolver ready to fire within five or ten seconds
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constitutes a sufficient factual basis for a determination that the
revolver was readily available to Nelson. See id. (concluding that
revolvers located in a knotted pillowcase inside a large plastic bag were
readily available to Freisinger).3
Finally, we consider Nelson’s argument that there was no factual
basis on which the District Court could have concluded that he
“transported” the weapons in his car, as Freisinger and its progeny
require. We need not refer to dictionaries to determine that
transportation requires a movement from one place to another, and Nelson
argues that his car remained in one place throughout his entire encounter
with the deputy. Putting aside procedural niceties--the government argues
that Nelson waived this argument by not raising it below, but Nelson may
be entitled as appellee to offer this alternative ground for affirmance--we
believe there was evidence presented at the sentencing hearing to establish
that Nelson transported the firearms. Nelson himself stated to the court
that he was giving his companion a ride to a friend’s house when his car
broke down in front of the park entrance, and both Nelson and the deputy
indicated that the car’s fuel pump was still running when Nelson got out
of the car. This evidence is certainly enough to permit the court
reasonably to determine that Nelson transported the firearms.
3
It is possible to read the District Court’s order as
including a finding of fact that the revolver was not readily
available to Nelson. Such a factual finding would be clearly
erroneous on this record, see Laird v. United States, 987 F.2d
527, 529 (8th Cir. 1993) (standard of review), as well as
slightly misdirected. As we have stated, the relevant inquiry is
whether there was sufficient evidence presented upon which the
court could reasonably have determined at the time of Nelson’s
plea in 1992 that the weapon was readily available to him.
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For the reasons stated, the order of the District Court vacating
Nelson’s § 924(c) conviction and the sixty-month sentence thereon is
reversed, and the case is remanded for resentencing consistent with this
opinion.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
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