UNITED STATES of America, Plaintiff-Appellee, v. Christine WAINUSKIS, Defendant-Appellant.
No. 96-60742.
United States Court of Appeals, Fifth Circuit.
April 9, 1998.
138 F.3d 183
Christine Wainuskis, Tallahassee, FL, pro se.
DUHÉ, Circuit Judge:
Defendant-Appellant Christine Wainuskis appeals the district court‘s denial of her
I.
Following an investigation of her activities and a search of the residence she shared with Joseph Materne (“Materne“), Christine Wainuskis (“Wainuskis“) was indicted by a federal grand jury on four counts involving drugs and weapons: conspiracy to possess with intent to distribute; possession with intent to distribute; knowing use or carrying of a firearm during or in relation to a drug trafficking offense; and felon in possession of a firearm. Officers found methamphetamine, scales, baggies, other items associated with the packaging and distributing of illegal drugs, and 27 guns during the search. Wainuskis was discovered in a bedroom of her residence, lying on a bed with a loaded gun tucked under the mattress. Her co-defendant, Materne, was seated near two weapons, both of which were visible to the searching officers and easily accessible to him.
In exchange for the government dropping charges of conspiracy to possess with intent to distribute methamphetamine and of possession with intent to distribute that drug, Wainuskis pled guilty to the remaining two counts: violations of
Wainuskis moved to set aside her conviction and sentence for the violation of
Wainuskis appeals. She argues that the factual basis for her plea establishes no more than mere possession and is insufficient to support a conviction of “use.” The Government agrees that there is an insufficient factual basis to support her plea to violating the
II.
Wainuskis‘s guilty plea was taken under Rule 11 of the Federal Rules of Criminal Procedure. Her appeal is properly before this Court because we have ruled in Andrade, 83 F.3d 729, 731 (5th Cir.) that although
[a] plea of guilty typically waives all non-jurisdictional 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.
Bailey‘s clarification of “use” provides Wainuskis with grounds to appeal her conviction and sentence.
We review a district court‘s denial of a
III.
A.
In denying Wainuskis‘s motion to set aside her conviction and sentence imposed under a Rule 11 plea, the district court examined both the facts available at the time of the plea colloquy and those provided later by the PSR. According to the United States Sentencing Commission, Guidelines Manual, § 6B1.1(c)(Nov.1995), when a dismissal of charges is part of a plea agreement, the court “shall defer its decision to accept or reject” any plea agreement “until there has been opportunity to consider the presentence report.” The Government dismissed two counts against Wainuskis in exchange for her guilty plea. The district court relied on both the plea colloquy and PSR to find a factual basis to support her guilty plea. Logically, it must examine the same information to determine if there is a factual basis to set aside her conviction.
This Court has upheld the district court‘s use of the PSR to find an insufficient factual basis and to reject a plea agreеment. United States v. Foy, 28 F.3d 464 (5th Cir.1994). See also United States v. Gulledge, 491 F.2d 679 (5th Cir.1974).3
Based on the U.S. Sentencing Guidelines and our jurisprudence, the district court was
B.
Wainuskis argues that Bailey‘s clarification of “use” in
In clarifying “use” the Court provided an illustrativе list: “brandishing, displaying, bartering, striking with and ... firing or attempting to fire a firearm.”7 More importantly, the Court noted that use cannot extend to encompass the action of an offender who has hidden a gun where he can grab and use it if necessary.8
Wainuskis‘s plea colloquy established that she was in a back bedroom during the search of her residence. A pistol was found under a mattress within arm‘s reach at the time that the search was executed. The PSR indicated that Wainuskis was lying on the bed in that bedroom and that the semi-automatic pistol was loaded. Under Bailey, Wainuskis merely possessed the weapon and did not actively employ it at the time of the search. She is correct in stating that under the Bailey clarification of “use” she has not violated
C.
This Court recently held that, because Bailey did not address the “carry” prong of
In Pineda-Ortuno, we noted that nothing in the legislative history of
More recently in United States v. Fike, 82 F.3d 1315 (5th Cir.1996), we reiterated the necessity of applying a literal meaning to “carry,” again based on Webster‘s definition. Although Fike involved a vehicle, which satisfied the element of transportation, the firearm was also within easy reach, thus sufficiently supporting a jury finding of “carrying.” Most recently in United States v. Thompson, 122 F.3d 304 (5th Cir.1997), we held that carrying involves moving or transporting the firearm in some manner or bearing the firearm upon one‘s person. 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
There is sufficient information before this Court to find that Wainuskis‘s conduct satisfies both the transportation and the ready accessibility elements of the “carry” prong. According to the PSR, Wainuskis, her mother, and Materne lived together in
The defendants moved to Ellisville, Mississippi around July 12, 1993, and a search warrant was executed there July 29, 1993. Twenty-seven guns were found in the residence the two shared. A semi-automatic pistol was seen on a stool next to Materne; a 9mm assault pistol was observed within his reach. Officers discovered Wainuskis lying on a bed with a loaded gun under the edge of the mattress.
Wainuskis agreed at the plea colloquy that she was discovered in a back bedroom and that the pistol was within arm‘s reach at the time the search was executed. She did not dispute, either, the more specific PSR that described her as “lying in a bed in a rear bedroom, ... a loaded semi-automatic pistol lying in the edge of the mattress between the mattress and the night stand.” She admitted that the two had moved from Petal where they were drug trafficking to Ellisville. She acknowledged that they had bought guns to protect their drugs and that they had continued to sell drugs when they moved to Ellisville. From both the PSR and the plea colloquy we could infer that the defendants, in their move, took with them the weapons they had acquired while in Petal to protect their drugs. Because Wainuskis was not charged with using or carrying a particular firearm, we could infer that the gun under the mattress was one of those transported by the defendants and kept within reach for Wainuskis to protect their drugs.
In entering her guilty plea to a violation of
D.
Agents saw Materne seated in the kitchen with a gun visible next to him on a stool and another loaded weapon visible within arm‘s reach. The open display of these weapons satisfies the Bailey “use” requirement for his conviction under
As an aider and abettor, Wainuskis can also bе found guilty of a violation of the “carry” prong of
IV. CONCLUSION
For the foregoing reasons, we affirm the district court‘s denial of Wainuskis‘s motion to set aside her conviction and sentence.
DENIAL AFFIRMED.
DeMOSS, Circuit Judge, dissenting:
Christine Wainuskis was arrested after officers executed a search warrant at her residence. Officers found Wainuskis in a bedroom lying on a bed. Either under the mattress (Rule 11 colloquy) or “lying in the edge of the mattress between the bed and the night stand” (Presentence Report), officers found a Colt semi-automatic pistol. Officers also found Wainuskis’ boyfriend Materne, an indeterminate number of other people, a quantity of drugs, and additional firearms in another part of the house. There is nothing in the Rule 11 colloquy or the PSR that suggests drugs were found in the bedroom. There is nothing in the Rule 11 colloquy or the PSR that suggests when or by whom the gun was placed under the mattress. There is nothing in the Rule 11 colloquy or the PSR that suggests any particular drug transaction was occurring any place in the house at the time police began the search.
The government prosecuted Wainuskis and she pleaded guilty on the theory that she “used” the Colt .38 caliber semi-automatic pistol taken from under her mattress in violation of
On appeal, we all agree that Wainuskis’ plea cannot be sustained upon the “use” theory that Wainuskis, the government, the probation officer and the district court uniformly understood to be the basis of Wainuskis’ plea at the Rule 11 hearing. The majority opinion nonetheless proceeds to the conclusion that Wainuskis’ plea should be sustained on the alternative basis that she “carried” the Colt pistol found beneath her mattress or that she aided and abetted Materne‘s independent
I.
Wainuskis’ guilty plea is based entirely upon the “use” prong of
When Wainuskis’ plea was taken, evidence that she kept a firearm for protection related to her engagement in drug trafficking was sufficient to establish a violation of
To allow Wainuskis’ plea to stand when premised upon conduct that the Supreme Court later determined to be non-criminal offends notions of traditional fairness and undermines the consensual nature of Wainuskis’ plea. See United States v. Addonizio, 442 U.S. 178, 186-87, 99 S.Ct. 2235, 2241, 60 L.Ed.2d 805 (1979); Davis v. United States, 417 U.S. 333, 343-47, 94 S.Ct. 2298, 2304-05, 41 L.Ed.2d 109 (1974). When a case has been tried to a jury and may be based upon either the “carry” prong or an impermissibly broad pre-Bailey construction of the “use” prong, we have generally required that the case be remanded for retrial on the “carry” prong alone. United States v. Johnston, 127 F.3d 380, 404 (5th Cir.1997), cert. denied, U.S. —, 118 S.Ct. 1174, 140 L.Ed.2d 183 (1998); United States v. Brown, 102 F.3d 1390, 1401 (5th Cir.1996), cert. denied, U.S. —, 117 S.Ct. 1455, 137 L.Ed.2d 559 (1997); United States v. Fike, 82 F.3d 1315, 1328 (5th Cir.), cert. denied, U.S. —, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996). The theory underlying cases such as Johnston, Brown, and Fike is that the appellate record cannot disclose which of the two alternative theories, the impermissible “use” theory or the permissible “carry” theory, was made the basis of the defendant‘s conviction. Johnston, 127 F.3d at 404; Brown, 102 F.3d at 1400-01; Fike, 82 F.3d at 1328. When that approach is applied to Wainuskis’ case, we find there is nо confusion about the theory made the basis of her conviction—the government, Wainuskis, the probation department, and the district court were all operating on the assumption that Wainuskis’ conviction was to be based upon the “use” prong of
The record demonstrates that Wainuskis’ plea was premised entirely upon a legally erroneous pre-Bailey definition of
II.
I also dissent from the majority‘s conclusion that Wainuskis “carried” the gun that the police pulled out from under her mattress when her home was searched.
Wainuskis’ case is not novel. Prior to Bailey, prosеcutors relied heavily upon the liberal construction given
The plain and ordinary meaning of the term “carry” demands some showing that the defendant touched, moved or transported the gun. See Hall, 110 F.3d at 1161. That interpretation is consistent with our own prеcedent and with the Supreme Court‘s discussion of
Finally, the plain language of
Based upon the foregoing elements, Wainuskis’ conviction cannot be affirmed on an alternative theory that she “carried” the gun absent evidence that Wainuskis placed the Colt pistol under the mattress at a time relevant to and for the purpose of facilitating the predicate drug trafficking offense.
III.
Applying these elements to Wainuskis’ case discloses that the record is not sufficiently developed to permit liability on the alternative theory that she “carried” the Colt pistol. Given Wainuskis’ admission that the
The majority simply decides, without the benefit of any supporting evidence, that Wainuskis probably placed the gun under the mattress. To reach that conclusion the majority infers that Wainuskis and Materne had guns in Petal, where they lived with Wainuskis’ mother, that they moved those guns from Petal to Ellisville, where the majority statеs they lived alone, and that the gun was found in their home. Therefore, either Wainuskis or Materne must have placed the gun under the mattress.
Let the record be clear. There is no record evidence that the Colt pistol found under Wainuskis’ mattress or any other identifiable weapon was moved from Petal to Ellisville. There is no record evidence that Wainuskis, or any other identifiable person, touched or moved the gun found under the mattress at any particular time. There is no record evidence that Materne and Wainuskis were the sole occupants of the Ellisville house. There is likewise no evidence indicating that drugs were found in the bedroom where Wainuskis was found or that drug transactions ever occurred in the bedroom or that any particular drug transaction was occurring when the house was searched. Similarly, there is no indication that the Colt pistol placed under the mattress was accessible when drug transactions were occurring or that the pistol was capable of or did facilitate any particular drug transaction.
I disagree that we can infer from a silent record that Wainuskis placed the gun under the mattress at some time in the past (satisfying the movement element) for the purpose of employing it in a drug trafficking offense. See United States v. McPhail, 112 F.3d 197, 199-200 (5th Cir.1997) (refusing to infer that gun seized from defendant known to have been involved in drug trade for months was carried in car for the purpose of facilitating a drug transaction). As in McPhail, I do not see how we can simply assume away the required factual basis for Wainuskis’ plea by substituting our own view of what likely occurred for a factual basis showing what actually occurred. Rather, we should require that a sufficient factual basis be developed in the district court to demonstrate the defendant was connected with this gun, and that the gun made the basis of her conviction was placed under the mattress for some purpose related to her drug trafficking offense. It is absolutely meaningless to first state that
Moreover, even assuming that Wainuskis placed the gun under the mattress, a fact not supported by the record, there can be no
Without regard to whether simply placing a gun in your bedroom is “carrying” a gun, surely it stretches credibility to contend that lying on that bed in a room where there are no drugs is carrying a gun “during and in relation to” a drug trafficking offense simply because there are drugs in another area of the house. The majority makes absolutely no attempt to establish a nexus between Wainuskis’ constructive possession of the Colt pistol and any underlying drug transaction. Wainuskis was charged with (though not convicted of) possession with intent to distribute methamphetamine. I suppose Wainuskis’ ongoing constructive possession of methamphetamine creates the potential for an argument that she violated
In United States v. Hall, 110 F.3d 1155 (5th Cir.1997) the defendant was arrested after a search warrant was executed on a private residence. Officers found and arrested Hall in the living room. Id. at 1157-58. There was a large quantity of cocaine on the coffee table and a gun lying on the floor within a few feet of the coffee table. Id. Hall pleaded guilty. This Court reversed and vacated Hall‘s conviction, finding that he neither “used” nor “carried” the gun during and in relation to a drug trafficking offense. Id. at 1162. Although the Hall panel relied in part on the fact that the record did not demonstrate how close Hall was to the coffee table, and hence the gun, the panel also relied upon the fact that there was no evidence to establish “who transported the gun to the trailer or moved it to its position on the floor.” Id. at 1162.
Wainuskis presents an even stronger case for relief than Hall. In Hall, the gun was discovered in plain view, in the same room as both the defendant and the drugs. In this case, the gun was found concealed under a mattress in a room where no drugs were found. The existing record does not support the inference that Wainuskis рlaced the gun under the mattress for the purpose of making it accessible to facilitate her drug trafficking offense. Thus, the record contains no evidence that Wainuskis’ constructive possession of the Colt pistol coincided with her employment of that weapon in the predicate drug trafficking offense.
In truth, although the majority purports to be requiring evidence that Wainuskis moved or transported the firearm, it has actually inferred that element out of existence and Wainuskis’ conviction rests upon nothing more than what the government stated in the Rule 11 hearing—constructive possession. The majority concedes as much with its comment that “Wainuskis merely possessed the weapon and did not actively employ it at the time of the search,” a statement which seems out of line given its conclusion that Wainuskis “carried” the firearm. Possession of a gun, even during and in relation to a drug trafficking offense, has never been enough to support a
Recognizing the weakness of the tenuous series of inferences underlying its conclusions that Wainuskis placed the gun under the mattress, the majority seeks to expand the offеnse by relying upon additional firearms seized from Wainuskis’ house.4 The problem with that analysis is that there is no more evidence that Wainuskis moved any one of those other guns than there is evidence that she moved the Colt pistol made the basis of her plea. Likewise, there is no more evidence tying any of those guns to the predicate drug trafficking offense than there is with respect to the Colt pistol made the basis of her plea. Expanding the inquiry to the other guns does not bolster the majority‘s conclusion that Wainuskis was carrying a gun during and in relation to a drug trafficking offense.
Wainuskis and Materne admitted that the two guns made the subject of their respective convictions, the Ruger pistol found near Materne and the Colt pistol found near Wainuskis, were their guns. There is absolutely no evidence that the remaining guns found in the home, or any particular one of the guns found in the home, were exclusively Materne‘s and Wainuskis‘. To the contrary, the PSR states that “numerous firearms in the kitchen/den area were located within arm‘s reach of the majority of the occupants of the kitchen and den.” That statement suggests that there were a number of people in the house when the search occurred, and that those individuals may have been in possession of firearms. Likewise, there is no evidence establishing that Materne and Wainuskis lived at the Ellisville address alone or that they owned or controlled all of the firearms found at that address.
The record contains no evidence that Wainuskis moved, handled or transported the firearm made the subject of her plea. Even assuming that Wainuskis placed the gun under the mattress, the record contains no evidence that Wainuskis actively employed the firearm during and in relation to a drug trafficking offense. I do not think we can ignore the lessons of Bailey and resurrect pre-Bailey
IV.
I also dissent from the majority‘s conclusion that Wainuskis’ conviction can be sustained on the theory that she aided and abetted Materne‘s independent violation of
As an initial matter, I object to the majority‘s reliance upon this theory which was not included in the indictment against Wainuskis, was not made the basis of her plea and was not in fact raised until the government filed a motion for reconsideration of the district court‘s decision to grant Wainuskis relief on her
Wainuskis’ plea cannot be sustained on an aiding and abetting theory absent evidence that Materne violated
The principal defect in the majority‘s aiding and abetting theory is that Materne was not convicted for violating
Even assuming the record establishes Materne‘s independent violation of
Wainuskis cannot be held liable for aiding and abetting Materne unless she “engaged in some affirmative conduct designed to aid the venture.” Martiarena, 955 F.2d at 367 (rejecting as insufficient government‘s evidence that defendant knew about and attempted to avoid principal‘s exposure to liability for offense, and requiring evidence that defendant “actively participated in conduct that assisted or rewarded principal‘s offense“). Specifically, Wainuskis’ plea must be supported with evidence that she knew the particular gun was available to Materne and that she took some action which assisted Materne‘s use or carriage of the weapon. E.g., Salazar, 66 F.3d at 729 (“the jury was required to find that Salazar knew that the gun was at least available to Hernandez and that Salazar took some action which assisted Hernandez‘s use of the gun“) (internal citation omitted). Mere presence and association, which are all that has been shown here, are insufficient. Id.; Martiarena, 955 F.2d at 366-67.
The majority also invokes the aiding and abetting theory with respect to the Colt pistol found under Wainuskis’ mattress and with respect to the additional firearms found in the house. I can think of no reason why, after reaching the conclusion that Wainuskis’ plea is supported by a sufficient factual basis with respect to her own conduct, the majority needs to develop not one but three separate theories for holding her vicariously liable for Materne‘s conduct. The gist seems to be that there are plenty of bad facts to support the notion that somewhere, at some time,
I would vacate Wainuskis’ plea and remand to the district court for repleading or trial with due consideration of the Supreme Court‘s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).