United States v. Keebler ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 2 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4043
(D.C. No. 94-CR-150-01)
RICK DEE KEEBLER, (District of Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Submitted on the briefs by agreement of the parties.
_________________________________
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
Rick Dee Keebler made a conditional plea of guilty to possession of cocaine with
intent to distribute and using or carrying a firearm in relation to a drug trafficking offense.
He appealed the denial of a motion to suppress and the imposition of a fine to this court.
United States v. Keebler, 78 F.3d 598, No. 95-4090, 1996 WL 84104 (10th Cir.)
(unpublished) Keebler I. The judgment of the district court was affirmed, but in the
process we noted:
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Finally, we point out that after Mr. Keebler pled guilty to the 18 U.S.C.
§ 924(c) gun count and after the appellate briefs were filed in this case, the
Supreme Court decided Bailey v. United States. . . . Although we express no
opinion on the merits of the matter, it may be possible that Mr. Keebler is
not guilty of a crime under § 924(c). Thus, we remand to the district
court with instructions to reconsider the propriety of Mr. Keebler’s
guilty plea in light of Bailey.
Id. (emphasis added). Mr. Keebler is once again before us, this time asserting the district
court did not follow our mandate because it did not hold an evidentiary hearing.
The pertinent facts upon which resolution depends are neither contested nor
complex. In Keebler I we noted:
While performing an inventory search, the officer discovered large
quantities of a variety of drugs in Mr. Keebler’s car. When Mr. Keebler
began reaching around the front-seat area of the car, the officer interceded
and found a loaded handgun under the front seat. Mr. Keebler was
subsequently charged with possession with intent to distribute controlled
substances pursuant to 21 U.S.C. § 841(a)(1) as well as with use and
carrying of a firearm in relation to a drug trafficking crime.
Id.
Because there had been no finding on which of the alternative violations of
§ 924(c) was the basis for Mr. Keebler’s plea, we remanded to the district court for
clarification. Nothing in the mandate even hinted that we wanted the district court to
conduct an evidentiary hearing to make this determination. Our silence on the subject left
the matter to the discretion of the district court.
As determined by our later decisions, it turns out the district court could comply
with the mandate by the simple expedient of applying case law and reaching a legal
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conclusion. Because it is not contested that Mr. Keebler had a loaded firearm under the
driver’s seat of the car he was operating and that vehicle was loaded with what the district
court described as “a drug supermarket,” it is uncontestable as a legal conclusion that Mr.
Keebler carried a firearm in relation to a drug trafficking offense. See United States v.
Barnhardt, 93 F.3d 706, 709 (10th Cir. 1996) (when a defendant pleads guilty to using
and carrying, it is necessary the court only make an inquiry of whether there is a factual
basis for the plea). Whether Mr. Keebler used the firearm is inconsequential because
there is no doubt, as the district court properly concluded, there is a factual basis for his
having carried it. Accordingly, no evidentiary hearing was necessary for the district court
to reach that same conclusion.
AFFIRMED.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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