UNITED STATES of America, Plaintiff-Appellee, v. Mario ULLOA, Defendant-Appellant.
No. 95-50302.
United States Court of Appeals, Fifth Circuit.
Aug. 27, 1996.
94 F.3d 949
Finally, the majority‘s conclusion that, “on the facts of this case, probable cause to justify seizure of the card mirrors probable cause to arrest Ho” is erroneous for two reasons. First, the evidence indicates that, before Ho revoked consent, the Officer had already seized the card, by removing it from the portfolio. The Officer testified on cross-examination that, “[w]hen [he] first located the card, it was obvious it was some type of contraband or something, that is when I controlled the folder.” (Emphasis added.) He was asked on redirect: “When you were going through the portfolio and discovered the white piece of plastic, did you know at this time before he pulled it back that that was a fraudulent credit card?” The Officer responded, “When I removed it from the folder, I suspected that it was.” (Emphasis added.)
If, as this testimony indicates, the card was seized before Ho revoked consent, the Officer did not need probable cause to again seize it post-arrest. (Once again, it would have been best, to say the least, for this fact issue to have been clarified in district court. Doubtless, it would have been, had the revocation pre-probable cause issue been properly raised.) Accordingly, if Ho did not revoke his consent before the card was seized by the Officer, his consent remains valid and the seized card is admissible.
The second basis for my not agreeing that “probable cause to justify seizure of the card mirrors probable cause to arrest Ho” is because Ho‘s consent dramatically alters the landscape. I am not willing to concede that, when an item suspected to be illegal is seen during a consent search, it is subject to post-consent revocation seizure only if probable cause, as that term is defined supra, existed to seize it when first seen. My research reveals no case on point. To the contrary, see, e.g., United States v. Guzman, 852 F.2d 1117, 1122 (9th Cir. 1988) (“evidence found before [consent] revocation will not be suppressed“). In short, probable cause is not the gateway for the admission of evidence found during a consent search. To so hold runs contrary to applying the Fourth Amendment within its defining “unreasonableness” standard.
III.
I would uphold the seizure, or at least the admissibility of the white card seen (and possibly seized) before revocation of consent. If nothing else, I would remand to reopen the suppression hearing, so that evidence can be received on the uncertain or missing facts, such as whether Officer Simone seized the card before consent was revoked. Therefore, I respectfully dissent.
Richard L. Durbin, Jr., Asst. U.S. Attorney, Office of the United States Attorney, San Antonio, TX, James H. DeAtley, Austin, TX, Margaret Feuille Leachman, U.S. Attorney‘s Office, El Paso, TX, for U.S.
Robert J. Perez, El Paso, TX, for Mario Ulloa, defendant-appellant.
Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit Judges.
Primarily at issue in this challenge to a guilty plea under the “use” prong of
I.
In August 1994, Ulloa was indicted on two drug counts and one count under the “use” prong of
To support the plea, the Government offered the requisite factual basis; Ulloa did not make a material objection. In no shape, form, or fashion did he assert that the factual basis was not sufficient for conviction under the “use” prong. His guilty plea was unconditional.
The factual basis presented by the Government was as follows. In July 1994, Ulloa asked Cubillos, an undercover officer who had previously declined Ulloa‘s offers to sell him drugs, if he knew anyone willing to exchange firearms for drugs or money. Cubillos notified the Bureau of Alcohol, Tobacco and Firearms and was instructed to await a similar offer from Ulloa. Subsequent to Ulloa again approaching him, Cubillos gave him
In early August 1994, Ulloa delivered the $60,000 as a down payment; the next day, he and Leonardo Vasquez delivered the cocaine to Cubillos. The three then proceeded to a house, where Ulloa and Vasquez were shown the firearms; at one point, Ulloa held a Mac-10 type machine gun. After they had seen and handled the firearms, Ulloa and Vasquez were arrested.
II.
The Supreme Court‘s recent decision in Bailey, ___ U.S. ___, 116 S.Ct. 501, was rendered after completion of briefing in this appeal. It involved two consolidated cases: in the first, a traffic offense stop was followed by an arrest after the police found cocaine inside the car and a firearm in a bag in the locked truck; in the second, arrest occurred after the search of an apartment revealed crack cocaine and an unloaded, holstered firearm in a locked footlocker in a bedroom closet. Each conviction was under both prongs of
At issue in Bailey was “whether evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is alone sufficient to support a [
At issue here is whether, under Bailey, Ulloa “used” the firearms by bartering drugs for them; in short, whether his actions constitute an offense proscribed by that prong of
As noted, in the process of pleading guilty in district court, Ulloa did not assert that the factual basis did not satisfy the “use” prong. Restated, he raises this issue for the first time on appeal, complicating this initial task.
A.
The district court “should not enter a judgment upon [a guilty] plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.”
Ulloa does not contest the findings of fact or other Rule 11 procedures followed, except on one point: “[w]hether the factual basis is sufficient to support conviction ... under ... 924(c)(1), where the Government rather than [Ulloa] used firearms as an instrument of barter in a drug trafficking crime.” Ulloa presented this issue in his pre-Bailey opening brief, asserting that Zuniga, our bartering drugs for firearms precedent, was wrongly decided under Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), and, alternatively, was distinguishable factually.
In Ulloa‘s view, Bailey clarifies that a
In his brief, Ulloa urged that the standard of review was for harmless error under
Consistent with the
Calverley describes the four criteria for finding such error: (1) there must be an error, i.e., a deviation from a legal rule, absent a valid waiver; (2) the error must be plain, i.e., clear or obvious, and “‘clear under current law at the time of trial‘“; (3) the error must affect substantial rights, i.e., it must be prejudicial and affect the outcome of the proceedings; and (4) upon finding these elements, we have discretion to correct such forfeited errors if they “seriously affect the fairness, integrity, or public reputation of judicial proceedings“. Id. at 163-64. (United States v. McGuire, 79 F.3d 1396 (5th Cir.), reh‘g en banc granted, 90 F.3d 107 (5th Cir. 1996), concerns whether plain error analysis applies when a Supreme Court decision that changes the law is rendered during direct appeal so that the jury instructions at trial may be reversible error, and, if so, whether the “plainness” of that error is to be measured at the time of the trial or appeal. Because, as discussed infra, Bailey did not change the law as it applies to Ulloa, the case at hand does not present the issue to be addressed by our en banc court.)
Challenging for the first time on appeal the factual basis underlying a
Zuniga was decided before our Calverley en banc court, enlightened by Olano, clarified plain error review. Among other things, and as emphasized supra, Calverley discusses the difference between “waiver” (the term used in Zuniga, as quoted above) and “forfeiture“; the latter is one of the prerequisites for plain error, as also emphasized supra. Calverley, 37 F.3d at 162. The post-Calverley road toward consistent, uniform, and simplified application of plain error review, however, has not been without bumps and curves. As with any rule of law, new scenarios and questions arise, as reflected by our approaching en banc consideration in McGuire.
This is reflected also by the fact that, as noted, after Bailey was handed down, our court rendered two opinions within two weeks of each other, and only a few weeks before oral argument in this case, which seem to apply different standards of review for the factual basis challenge to a
Each opinion concerns a pre-Bailey guilty plea, and each takes Bailey into consideration. On the one hand, Andrade addressed an instance “where intervening law has established that a defendant‘s actions do not constitute a crime and thus that the defendant is actually innocent of the charged offense” to which he pled guilty. Andrade, 83 F.3d at 731. On the other hand, Rivas speaks of “[t]he district court‘s acceptance of a guilty plea [being] considered a factual finding that there is an adequate basis for the plea.... [and w]e therefore review this finding for clear error.” Rivas, 85 F.3d at 194. Various factors are at play in deciding which, if either, of the two standards apply here; in that regard, each opinion must be examined carefully.
Rivas had a pistol when arrested en route to inspect cocaine he had sold; in district court, he stated that the pistol was under his seat in the vehicle, but the Government claimed it was in his trousers. Rivas, 85 F.3d at 194. The pre-Bailey
On appeal, Rivas raised a factual basis challenge to the plea, contending that, under Bailey, he did not “use” the firearm because, premised on his district court assertion that the pistol was under his seat, it, accordingly, was not actively employed or an operative factor in the offense. Id. As noted, our court stated the following standard of review: “The district court‘s acceptance of a guilty plea is considered a factual finding that there is an adequate basis for the plea. We therefore review this finding for clear error.” Id. at 194.
Our court noted that the district court was correct in stating pre-Bailey that, for conviction under either prong, it did not matter whether the gun was under Rivas’ seat or in his trousers, and held that it was not necessary post-Bailey to decide the “use” prong issue because: (1) in any event, Rivas was also charged under the “carry” prong; (2) precedent for that prong was not affected by Bailey, which did not address it; (3) Rivas’ challenge went only to the “use” prong; and (4) his factual objection in district court did not preclude finding that he carried the weapon for
In sum, it may be that the Rivas clear error standard of review was not directed toward the “use” issue, but instead was directed toward the unchallenged “carry”
While searching Andrade‘s residence, the police found cocaine in a bedroom closet and a revolver under a mattress approximately seven feet away. Andrade, 83 F.3d at 730. Andrade pled guilty under the “use” prong; the “carry” prong was not involved. Id. Our court noted that, “[a]t the time of his [pre-Bailey] plea, these facts adequately supported a conviction [under the ‘use’ prong] for the firearm offense in this circuit.” Id.
As in the case at hand, Andrade claimed on appeal that Bailey rendered the factual basis insufficient. Id. Our court agreed, holding that the basis established no more than mere possession. Id. at 730 & n. 1.
As noted, for reviewing that basis, our court stated:
A plea of guilty typically waives all nonjurisdictional defects in the proceedings below. Nonetheless, in this particular context, where intervening law has established that a defendant‘s actions do not constitute a crime and thus that the defendant is actually innocent of the charged offense, application of this rule is misplaced. We have previously permitted attacks on guilty pleas on the basis of intervening decisions modifying the substantive criminal law defining the offense.
Id. at 731 (citations omitted). Our court did not state the standard of review. But, it apparently utilized that for plain error. The most recent of several cases cited by Andrade for the intervening decision exception detailed above is United States v. Knowles, 29 F.3d 947, 950-51 (5th Cir. 1994), which applied the plain error standard.
Knowles, rendered after the Supreme Court‘s Olano opinion but before our Calverley en banc opinion, vacated a conviction for violation of a statute that our court had earlier held unconstitutional in another case after Knowles pled guilty. The Knowles court noted that, as here, before it could deal with the merits, it had to address Knowles’ failure to raise in district court the issue presented on appeal. Id. at 950.
Because of that forfeiture, our court utilized the plain error standard of review and, in so doing, noted that “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and an ‘error‘.” Id. at 951. Noting that it was “also evident that this error affected the outcome of the proceedings” in district court, id., our court held that “failure to address Knowles‘s challenge to the constitutionality of the ... Act would seriously affect the fairness, integrity, and public reputation of judicial proceedings.” Id. at 951-52. It reversed the conviction. Id. at 952.
Andrade involved an instance where “intervening law has established that a defendant‘s actions do not constitute a crime and thus that the defendant is actually innocent of the charged offense.” Andrade, 83 F.3d at 731. In any event, it appears that it applied plain error review. It seems that, based on its facts and the change wrought by Bailey, Andrade conflated the steps for plain error review and granted relief. We need not be concerned further with this possibility, because, unlike Andrade, and as hereinafter discussed, the instant appeal does not present an issue that has arisen only because of an intervening decision.
The issue Ulloa presents now is the same as he presented to us before Bailey; it focuses in large part on a decision by our court—Zuniga—rendered approximately a year before his plea. And, unlike what appears to have been the basis for the clear error standard of review in Rivas, Ulloa does not present an issue for which we need be satisfied
B.
Ulloa pled guilty and was sentenced in the Spring of 1995. Well in advance of his plea, our court held in Zuniga that bartering drugs for firearms constitutes an offense under
Under Smith, 508 U.S. at 241, 113 S.Ct. at 2060-61, “[b]oth a firearm‘s use as a weapon and its use as an item of barter fall within the plain language of
It would seem that no more need be said; but, as noted, Ulloa maintains that Smith was overruled by Bailey, and that, accordingly, Zuniga was overruled as well. Bailey did not overrule Smith; to the contrary, the Court stated that Bailey
is not inconsistent with Smith. Although there we declined to limit “use” to the meaning “use as a weapon,” our interpretation of
§ 924(c)(1) nonetheless adhered to an active meaning of the term. In Smith, it was clear that the defendant had “used” the gun; the question was whether that particular use (bartering) came within the meaning of§ 924(c)(1) .
___ U.S. at ___, 116 S.Ct. at 508.
Bailey offers the following definitions for “use“:
The word “use” in the statute must be given its “ordinary or natural” meaning, a meaning variously defined as “[t]o convert to one‘s service,” “to employ,” “to avail oneself of,” and “to carry out a purpose or action by means of.”
Id. at ___, 116 S.Ct. at 506. Moreover, it enumerates bartering as a
Still undaunted, Ulloa claims also that, although
In Zuniga, after the drugs for firearms exchange, Zuniga placed the firearms in his automobile and, while they were in his “possession“, departed (but with the undercover agents in his vehicle) to complete the transaction. 18 F.3d at 1257. Zuniga had bartered drugs not only for firearms, but also for money; the remaining detail was for him to obtain the latter. But, when he arrived, with the undercover agents, at the location for the money, he was arrested. Id.
To claim as Ulloa does that possession plus more was involved in Zuniga, that it turned on some form of hands-on use of the firearms by Zuniga, is simply incorrect. After the exchange, the weapons were with the undercover agents at all times; Zuniga never had the “dominion and control” over the firearms that Ulloa attributes to Zuniga‘s being around, or handling, them longer than Ulloa had occasion to do with the firearms he received in his barter.
In any event, Ulloa claims that he never “possessed” the firearms. We need not de
It is true that Bailey held “that ‘use’ must connote more than mere possession of a firearm by a person who commits a drug offense“, ___ U.S. at ___, 116 S.Ct. at 506; but, this simply addresses the obvious fact that possession is not even necessarily part of the mix. An offender can use a firearm without possessing it, as is made plain by the examples given in Bailey of what could constitute “use“: “a reference to a firearm calculated to bring about a change in the circumstance of the predicate offence is a ‘use,’ just as the silent but obvious and forceful presence of a gun on a table can be a ‘use.‘” Id. at ___, 116 S.Ct. at 508. Neither instance necessarily requires that the offender “possess” the firearm, however that term might be defined by Ulloa.
Bailey declares further:
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; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction.
Id. at ___, 116 S.Ct. at 507 (emphasis added). Just as “a firearm can be used without being carried“, as “when an offender ... barters with a firearm without handling it“, so also, in a drugs-for-firearms barter, can it be “used” without being possessed and subsequently used or employed in some other fashion, as the above examples show.
We agree with the Government that, by bartering drugs for firearms, Ulloa “used” the firearms because, under one of Bailey‘s definitions of “use“, id. at ___, 116 S.Ct. at 506, Ulloa “carr[ied] out a purpose or action by means of” them. Bailey holds that ”
As stated, for the issue at hand, Bailey has not changed the law of this circuit; bartering drugs for firearms has long been an offense under
III.
For the foregoing reasons, the judgment is AFFIRMED.
E. GRADY JOLLY, Circuit Judge, dissenting in part, specially concurring in result:
I concur in the result reached by Judge Barksdale but respectfully dissent from his analysis with respect to the standard of review. The question presented is whether Ulloa‘s contention that no offense was committed under
I recognize that in many—if not most—cases challenging the sufficiency of the facts upon which a conviction rests, the standard of review used by this court is somewhat an abstract question that may be of little practical consequence; that is, the result will be the same under either standard. In cases such as this one, however, where a defendant contends that intervening law establishes that his actions do not constitute a crime, the standard of review that we apply can be of enormous consequence. To review for plain error, as Judge Barksdale insists, would render many challenges unreviewable. This is
- there must be an error, i.e., a deviation from a legal rule, absent a valid waiver;
- the error must be plain, i.e., clear or obvious, and “clear under current law at the time of trial“;
- the error must affect substantial rights, i.e., it must be prejudicial and affect the outcome of the proceedings; and
- the errors “seriously affect the fairness, integrity, or public reputation of judicial proceedings.”
Op. at 5553 (citing U.S. v. Calverley, 37 F.3d 160, 163-64 (5th Cir. 1994) (en banc)). Clearly, where intervening law establishes that a defendant‘s actions do not constitute a crime, a defendant restricted to plain error review will be unable to demonstrate that the error was “‘clear under current law at the time of the trial.‘”1 Confining our review to plain error, thus, would leave this court powerless to correct a jurisdictional defect that goes “to the very power of the State to bring the defendant into court to answer the charges brought against him.” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974).
We have long held that a claim that an indictment fails to allege an offense is a challenge to the jurisdiction of the convicting court and is not waived by a guilty plea. See United States v. Osiemi, 980 F.2d 344, 345 (5th Cir. 1993); United States v. Rivera, 879 F.2d 1247, 1251, n. 3 (5th Cir.), cert. denied, 493 U.S. 998, 110 S.Ct. 554, 107 L.Ed.2d 550 (1989); United States v. Edrington, 726 F.2d 1029, 1031 (5th Cir. 1984); United States v. Lopez, 704 F.2d 1382, 1385 (5th Cir. 1983); United States v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980). Accordingly, we have permitted defendants on direct appeal to raise an objection that the indictment fails to state an offense even though the defendant failed to object at the trial level. See United States v. Tashnizi, 687 F.2d 50 (5th Cir. 1982); United States v. Varkonyi, 645 F.2d 453, 455 (5th Cir. 1981). Similarly, we have permitted such challenges to be raised for the first time in a petition for habeas corpus “because such an error divests the sentencing court of jurisdiction.” Osiemi, 980 F.2d at 345. See also United States v. Harper, 901 F.2d 471, 472 (5th Cir.), reh‘g denied, en banc 907 F.2d 146 (1990); United States v. Prince, 868 F.2d 1379, cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989). We have done so for the well-established reason that “a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.” Menna v. New York, 423 U.S. 61, 62-63 n. 2, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975). See also United States v. Knowles, 29 F.3d 947, 952 (5th Cir. 1994).
At bottom, then, this is a question not of procedural default, but of jurisdiction—the power to convict a criminal defendant and send him to jail. We have such power by virtue of the statutes under which a defendant is being prosecuted. Where a defendant contends that intervening law establishes that his conduct is not punishable under the relevant statute, we are obligated independently to establish our jurisdiction over the defendant. Moreover, as the dissent points out, to deny a criminal defendant the benefit of changes in the substantive criminal law defining the offense for which he has been convicted, simply because “he failed to make a futile and probably frivolous objection, does not accord with basic fairness.” Dissent at 5560 (citing United States v. McGuire, 79 F.3d 1396, 1402 (5th Cir. 1996)).
Although the standard of review will be of critical practical importance in cases where we agree with the defendant that intervening law establishes that his conduct falls outside the scope of the statute, in this case it is not. For the reasons stated in Judge Barksdale‘s opinion, Ulloa “used” a firearm within the meaning of
I do not agree with the majority‘s holding that the appropriate standard of review in this case is plain error. We review here a guilty plea. Whether a factual basis for the plea exists is viewed under the clearly erroneous standard1 and must be determined in light of the law applicable at the time of the appeal.2 For the reasons outlined in Briggs our review should focus on and be limited to the validity of the guilty plea.3 Therefore I must conclude that the majority‘s analysis is mistaken and improvident.
I reject out-of-hand the proposition, latent in the majority opinion, that this court may ignore the plight of one who is being punished for actions the highest court in this land have determined are not criminal.4 We previously have stated that “[t]o deny a criminal defendant the benefit of a rule that clearly departed from well-settled law to the contrary, merely on the basis that he failed to make a futile and probably frivolous objection, does not accord with basic fairness.”5 To now declare that this court may recognize a fundamental unfairness but opt to essentially ignore it renders a manifest injustice truly opprobrious.
I disagree with the majority on the merits of this appeal. Bailey clearly requires “active employment” of the firearm. In the case at bar, however, the firearm was exclusively the passive object of Ulloa‘s actions. It cannot be gainsaid that one may “use” a firearm without “possessing” it at the moment of use, but I am persuaded beyond peradventure that there must be some showing that the defendant exercised actual dominion over or otherwise meaningfully manipulated the weapon. Absent such a showing, there is nothing more than a firearm present at a transaction involving illegal drugs, a circumstance that, without more, does not state an offense under
I dissent.