United States v. Figueroa-Romero ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1856
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO FIGUEROA-ROMERO,
Appellant.
No. 96-1254
UNITED STATES OF AMERICA,
Appellee,
v.
ALFREDO CESPEDES,
Appellant.
No. 96-1255
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE A. RIVERO-CABANAS,
Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Julio Figueroa-Romero on brief pro se.
Antonio Bauza Torres, by appointment of the Court, on brief for
appellant Alfredo Cespedes.
Jose A. Rivero-Cabanas on brief pro se.
Philip Urofsky, Attorney, Narcotic & Dangerous Drug Section,
Department of Justice, John C. Keeney, Acting Assistant Attorney
General, Theresa M.B. Van Vliet, Chief, and Guillermo Gil, United
States Attorney, on brief for appellee.
May 21, 1997
Per Curiam. Alfredo Cespedes, Jose Antonio Rivero-
Cabanas and Julio Figueroa-Romero (collectively "defendants")
pleaded guilty to drug trafficking and firearm counts in
Puerto Rico Federal District Court. Each appeals his firearm
conviction or sentence under 18 U.S.C. 924(c)(1), pursuant
to the Supreme Court's more recent opinion in Bailey v.
United States, U.S. , 116 S. Ct. 501 (1995). Cespedes
also appeals the court's calculation of his criminal history
category. We affirm.
I. Background
The indictments and subsequent pleas were based on
the following facts. Beginning in 1993, the defendants and
several others entered into a conspiracy to smuggle
controlled substances into Puerto Rico. They made several
attempts to import illegal substances; some succeeded, some
did not. Pre-sentence reports indicate that Rivero was the
overall organizer and manager of the conspiracy. Cespedes
managed distribution in Miami while Figueroa managed the
operations based in Puerto Rico.
The defendants' guilty pleas relate to incidents
that occurred in November of 1993. The first incident took
place in mid-November. Cespedes left Miami for Puerto Rico
in order to assist Rivero in taking delivery of 3,000 pounds
of marijuana. On the night of the planned delivery, Figueroa
distributed guns to the other conspirators. The group waited
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at the mouth of the Humacoa river for two nights but the
delivery failed to materialize. They tried again
approximately one week later; however, once again the drugs
eluded their grasp.
Rivero next made arrangements with a Colombian
supplier to deliver cocaine by air drop. The group, again
armed, succeeded in retrieving approximately twenty bales of
cocaine from the ocean before they were intercepted by law
enforcement officials.
In April 1994, the defendants were indicted on ten
drug trafficking and firearm counts. One year later, each
defendant pleaded guilty to one count of conspiracy to
possess with intent to distribute cocaine, 21 U.S.C.
841(a)(1), 846, and one count of aiding and abetting the
use and carrying of firearms during the commission of a drug
trafficking crime, 18 U.S.C. 924(c)(1).
II. Discussion
18 U.S.C. 924(c)(1) imposes a mandatory five-year
prison term on any person who "during and in relation to any
crime of violence or drug trafficking crime . . . uses or
carries a firearm." After the defendants were sentenced but
prior to this appeal, the Supreme Court held in Bailey that
the word "use" was to be given its "ordinary or natural
meaning." 116 S. Ct. at 506. Accordingly, to be convicted
of "use" under the statute, a defendant must have "actively
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employed the firearm during and in relation to the predicate
crime." Id. at 509. The government concedes that none of
the defendants' actions rise to this level but maintains that
the record contains sufficient facts to support the
convictions under the "carry" prong.
We have said that the Bailey Court recognized that
the "carry" prong of 924(c) would take on added importance
in light of the new limitations on "use." United States v.
Ramirez-Ferrer, 82 F.3d 1149, 1152 (1st Cir.), cert. denied,
117 S. Ct. 405 (1996). Recently, in United States v.
Cleveland, 106 F.3d 1056 (1st Cir. 1997), we recognized
"carry" as applying both to transport in a vehicle and on a
defendant's person. Id. at 1067. We declined to limit this
reading by adopting a requirement of accessibility, finding
instead that "the distinguishing characteristic of "carry" is
not the instant availability of the item carried, but the
fact that the item is being moved from one place to another
by the carrier. . . . Id. at 1068. This movement, however,
must have some nexus to the predicate offense. Ramirez-
Ferrer, 82 F.3d at 1152. Because the firearms charges were
for aiding and abetting, the convictions will stand "if one
defendant is found to have to have carried a firearm in
violation of 924(c)(1) and the others to have aided and
abetted." Id. We examine each defendant's case in turn.
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A. Figueroa
Figueroa pleaded guilty to aiding and abetting the
use or carrying of firearms in connection with the failed
marijuana delivery and the cocaine air drop. He maintains
that he himself did not use or carry any firearms and
objected to the section of his Pre-Sentence Report ("PSR")
stating that he possessed and distributed firearms to the co-
conspirators. When Figueroa voiced this objection at his
sentencing, the court ordered the government to make an offer
of proof in support of its allegations that Figueroa
"facilitated" and "distributed" firearms to the co-
conspirators. The government informed the court that five
co-conspirators were ready to testify that they received
weapons from Figueroa during the unsuccessful attempt to
import marijuana and during the cocaine drop. Figueroa
responded that he would have impeached these witnesses'
testimony by his own testimony and that of Rivera. The court
found by a preponderance of the evidence that Figueroa
facilitated and distributed the weapons to the co-
conspirators on the two relevant occasions.
This finding is enough to support carrying within
the meaning of 924(c)(1) and under Cleveland. In order to
bring and distribute firearms to his co-conspirators,
Figueroa would have had to transport them either in a vehicle
or on his person. Either is enough to fulfill the
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requirements of carrying as in this context, the required
nexus to the predicate offense is unquestionably present.
Figueroa, however, did not plead guilty to
"carrying", but to aiding and abetting carrying, requiring
that at least one other defendant carry a firearm. This
requirement, however, is easily met. In his written
objections to the PSR, Figueroa acknowledged that he had
"pleaded guilty to participating in an illegal drug
distribution scheme knowing (as an aider and abettor) that
another co-conspirator(s) carried firearm(s) during the said
distribution. . . ." (emphasis in original).1 The evidence
is sufficient to support Figueroa's guilty plea to the aiding
and abetting of carrying under 924(c)(1).
B. Rivero
Rivero, like the other defendants, pleaded guilty
to aiding and abetting the use or carrying of firearms.
Because we have found that Figueroa carried firearms within
the meaning of 924(c)(1), Rivero's admitted status as
Figueroa's co-conspirator in the drug trafficking offense is
sufficient to uphold his guilty plea to the firearms count
under Ramirez-Ferrer. Moreover, Rivero did not object to the
section in his PSR that stated that Figueroa brought,
1. We also note that all three defendants at their change of
plea hearings agreed with the government's version of the
facts which stated that during the commission of the two drug
trafficking offenses "the co-conspirators carried firearms."
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distributed and hence, carried the firearms during the
commission of a drug trafficking offense.
Rivero also maintains that he should be allowed to
withdraw his guilty plea because the court gave an imprecise
definition of "aiding and abetting" when it accepted his
plea. During the Rule 11 hearing the following colloquy
ensued:
THE COURT: The charge is aiding and
abetting, which means if there is a group
of persons that are in common consort
carrying out an activity and one or more
has weapons while the illegal activity is
going on, if you are aiding and abetting
in the importation of cocaine and persons
are using weapons and you are charged as
an aider or abettor in the possession of
those firearms. You may not have had
them personally on your person but if
there were others that had them, then you
could be charged as an aider and abettor
and that is what you are charged with in
Count 6.
THE DEFENDANT: Yes, sir.
THE COURT: And that is what you are
pleading guilty to.
THE DEFENDANT: Yes, sir.
We fail to see, and Rivero has not explained, what was
lacking in this explanation. Based on Figueroa's carrying of
firearms we find that the evidence is sufficient to support
Rivero's aiding and abetting the carrying of firearms.2
2. Rivero also complains that the court erred by using pre-
Bailey law in its explanation of the firearms charge,
rendering the guilty plea non-knowing and voluntary. As we
explained, ante, however, Rivero accepted the government's
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C. Cespedes
Unlike the other two defendants, Cespedes does not
seek to overturn his guilty plea to the firearms charge.
Instead, he contests the imposition of the five-year
consecutive sentence required under 924(c), arguing for a
concurrent sentence under U.S.S.G. 5G1.2(c).3 Although,
strictly speaking, appeals to "correct a sentence" are more
properly pursued via a habeas petition under 28 U.S.C.
2255, Cespedes' arguments touch on the validity of the
conviction, making review appropriate in this forum.
Cespedes contends "the elements of carrying or use
were not present in relation to the Count One crime." We
dispose of this assertion in short order. Cespedes' PSR
stated that during the earlier unsuccessful attempt to import
marijuana "Mr. Figueroa distributed several firearms among
the co-conspirators" and that Cespedes, among others, "while
in possession of firearms, waited at the mouth of the Humacao
River . . . ." Cespedes did not object to this section of
contention that Figueroa facilitated and distributed the
firearms, negating any possible claim of ignorance or
involuntariness.
3. Section 5G1.2(c) states:
If the sentence imposed on the count
carrying the highest statutory maximum is
adequate to achieve the total punishment,
then the sentences on all counts shall
run concurrently, except to the extent
otherwise required by law.
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the PSR. Given that we have already found that Figueroa's
behavior meets the standard for carrying within the meaning
of 924(c)(1), we see no reason to reverse Cespedes'
sentence on this basis.
Cespedes also claims that the court erred in
including in his criminal history category computation an
earlier withheld adjudication ending in a plea of nolo
contendere. There are two prongs to his attack. First, he
argues that a plea of nolo contendere can not be equated with
a guilty plea for the purposes of the sentencing guidelines.
We addressed this issue in United States v. Pierce, 60 F.3d
886 (1st Cir. 1995), cert. denied, 116 S. Ct. 2580 (1996),
where we concluded that an event which establishes guilt,
whether "by guilty plea, trial, or by plea of nolo
contendere," is includable in a defendant's criminal history
computation. Id. at 892.
Cespedes' second argument is that the court should
have allowed him to attack collaterally this same state
charge because he was appointed counsel only at the "instant"
he made the nolo contendere plea. For support he relies on
Custis v. United States, 511 U.S. 485 (1994), which held that
a collateral attack on a prior state conviction at a federal
sentencing proceeding can be had only if the defendant can
claim total absence of counsel in violation of the Sixth
Amendment. Id. at 496. Such was not the case here.
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Cespedes acknowledges that he had counsel when he gave the
plea of nolo contendere. That it was, perhaps, not effective
counsel because of the timing, is an argument to be made in a
habeas petition pursuant to 28 U.S.C. 2255.
The convictions and sentences of the defendants are
affirmed.
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