United States v. Bell

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UNITED STATES of America, Plaintiff-Appellee. v. Yvette BELL, Defendant-Appellant.

No. 96-2626

United States Court of Appeals, Eleventh Circuit.

March 23, 1998.

Non-Argument Calendar.

This claim also fails to meet the standard under the second exception to the bar against successive federal habeas petitions. This is not a situation where the “facts underlying the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found that applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). As this court has noted, and the statute itself specifies, this exception applies only to claims going to the question of whether or not the applicant is “guilty of the underlying offense“—not to claims related to sentence.

In re Medina, 109 F.3d 1556, 1565 (11th Cir.1997). Because this claim is cognizable under neither of the two exceptions provided for in section 2244(b)(2), Jones has failed to make out the showing required by section 2244(b)(3)(C).

Accordingly, Jones’ motion to stay his execution is DENIED and Jones’ application for leave to file a second or successive petition is DENIED.

James H. McCarty, Gainesville, FL, for Defendant-Appellant.

R. Jerome Sanford, Asst. U.S. Atty., Gainesville, FL, for Plaintiff-Appellee.

Before COX and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

This case requires us to decide if Pinkerton co-conspirator liability continues to apply to section 924(c) cases after the Supreme Court‘s decision in

Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We conclude that it does and therefore affirm the district court‘s refusal to permit Bell to withdraw her guilty plea.

18 U.S.C. § 924(c) punishes individuals who use or carry a firearm in connection with drug trafficking or a crime of violence. In

Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 1184-85, 90 L.Ed. 1489 (1946), the Supreme Court held that criminal defendants are liable for the reasonably foreseeable actions of their co-conspirators. Pinkerton liability is well established in this Circuit, see, e.g.

United States v. Broadwell, 870 F.2d 594, 603-04 (11th Cir.1989), and although we have apparently never directly confronted the issue, the general rule among the circuits has been that the Pinkerton doctrine is applicable in section 924(c) cases, see, e.g.

United States v. McManus, 23 F.3d 878, 883 (4th Cir.1994),

United States v. Castaneda, 9 F.3d 761, 765 (9th Cir.1993), cert. denied,

511 U.S. 1041, 114 S.Ct. 1564, 128 L.Ed.2d 210 (1994);

United States v. Davis, 1 F.3d 1014, 1017 (10th Cir.1993).

The district court correctly held that the Supreme Court‘s opinion in Bailey did not preclude the application of Pinkerton liability in Bell‘s case. In Bailey, the Court held that a conviction for “using” a firearm required proof of active employment of a weapon, and that proof of mere possession was insufficient. See

Bailey, 516 U.S. at 142, 116 S.Ct. at 506. Bailey interpreted the meaning of the word “use.” Every appellate court opinion we have found on this issue has squarely held that Pinkerton liability continues to apply to section 924(c) offenses subsequent to Bailey. See e.g.

Woodruff v. United States, 131 F.3d 1238, 1243 (7th Cir.1997);

United States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir.1997), cert. denied, —

U.S. —, 118 S.Ct. 895, 139 L.Ed.2d 880 (1998);

United States v. Wilson, 105 F.3d 219, 221 (5th Cir.1997), cert. denied, —

U.S. —, 118 S.Ct. 133, 139 L.Ed.2d 82 (1997);

United States v. Myers, 102 F.3d 227, 237-38 (6th Cir. 1996), cert. denied, —

U.S. —, 117 S.Ct. 1720, 137 L.Ed.2d 843 (1997);

United States v. Rodger, 100 F.3d 90, 91 (8th Cir.1996), cert. denied, —

U.S.—, 118 S.Ct. 145, 139 L.Ed.2d 92 (1997);

United States v. Pimentel, 83 F.3d 55, 58 (2d Cir.1996).

We agree with the reasoning of our sister circuits and now expressly hold that the Supreme Court‘s decision in Bailey did not eliminate Pinkerton liability.

The sole issue on this appeal is whether the district court should have allowed plaintiff to withdraw her pre-Bailey guilty plea because without Pinkerton, the government‘s proffer was insufficient to constitute a crime. Since the government‘s proffer was sufficient factually to provide the basis for Pinkerton liability, the court properly denied the motion to withdraw.

AFFIRMED.

Case Details

Case Name: United States v. Bell

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 23, 1998

Citation: 137 F.3d 1274

Docket Number: 96-2626

Court Abbreviation: 11th Cir.