Tannenbaum v. United States , 148 F.3d 1262 ( 1998 )


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  •                                    United States Court of Appeals,
    
                                              Eleventh Circuit.
    
                                                  No. 97-4441
    
                                          Non-Argument Calendar.
    
                            Eric Mark TANNENBAUM, Petitioner-Appellant,
    
                                                        v.
    
                          UNITED STATES of America, Respondent-Appellee.
    
                                                Aug. 4, 1998.
    
    Appeal from the United States District Court for the Southern District of Florida. (Nos. 92-6175-CR-
    JAG & 96-6324-CIV-JAG), Jose A. Gonzalez, Judge.
    
    Before GODBOLD, HILL and FAY, Senior Circuit Judges.
    
            PER CURIAM:
    
            Eric Mark Tannenbaum appeals the district court's denial of his 28 U.S.C. § 2255 motion to
    
    vacate, set aside, or correct his sentence for the violation of 18 U.S.C. § 924(c)(1) (possession of a
    
    firearm during a drug-trafficking offense).
    
            On appeal, Tannenbaum argues that when he pled guilty to carrying and using a firearm in
    
    violation of § 924, his plea was based solely on the law before the clarification in Bailey v. United
    
    States, 
    516 U.S. 137
    , 
    116 S. Ct. 501
    , 
    133 L. Ed. 2d 472
     (1995)(requiring proof of active employment
    
    of the firearm in the commission of the offense to establish "use" under 18 U.S.C. § 924(c)(1)). He
    
    also argues that because of the Supreme Court's recent holding in Bousley v. United States, --- U.S.
    
    ----, 
    118 S. Ct. 1604
    , 
    140 L. Ed. 2d 828
     (1998), even though his claim was procedurally defaulted by
    
    not challenging the validity of his guilty plea on appeal, if he can establish "actual innocence," he
    
    may still be entitled to a hearing on its merits.
            In a § 2255 proceeding, this Court reviews factual findings for clear error while it reviews
    
    legal issues de novo. Martin v. United States, 
    81 F.3d 1083
    , 1084 (11th Cir.1996); Fernandez v.
    
    United States, 
    941 F.2d 1488
    , 1491 (11th Cir.1991). Pro se pleadings are held to a less stringent
    
    standard than pleadings drafted by attorneys and will, therefore, be liberally construed. Fernandez,
    
    941 F.2d at 1491. But, issues not raised below are normally deemed waived. See generally United
    
    States v. Everett, 
    129 F.3d 1222
    , 1225 (11th Cir.1997). "[T]he voluntariness and intelligence of a
    
    guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley,
    
    118 S.Ct. at 1609.
    
           We have reviewed the applicable statutes and caselaw, examined the relevant portions of the
    
    record, and considered the briefs of the parties; we find no reversible error.
    
            Because Bailey discussed only the "use" prong of § 924(c), it did not change the analysis
    
    to be applied to determine whether evidence is sufficient to convict a defendant for "carrying" a
    
    firearm under § 924(c). See United States v. Farris, 
    77 F.3d 391
    , 395 & n. 4 (11th Cir.), cert.
    
    denied, --- U.S. ----, 
    117 S. Ct. 241
    , 
    136 L. Ed. 2d 170
     (1996). In order to convict a defendant for
    
    "carrying" a firearm, it is necessary only to show that the defendant knowingly carried a gun in a car
    
    that was being used as a drug-distribution center. United States v. Range, 
    94 F.3d 614
    , 617 (11th
    
    Cir.1996)(defendant who knowingly carried a gun under the floormat of his car when delivering
    
    drug money was properly convicted of carrying a firearm under § 924(c), even though there was
    
    insufficient evidence to support his conviction for use of a firearm); see also, Muscarello v. United
    
    States, --- U.S. ----, 
    118 S. Ct. 1911
    , 
    141 L. Ed. 2d 111
     (1998) (holding the phrase "carries a firearm"
    
    is not limited to the carrying of firearms on the person, but also applies to a person who knowingly
    
    possesses firearms in a vehicle, including in the locked glove compartment or trunk of a car).
    
    
                                                      2
            In Bousley, --- U.S. at ----, 118 S.Ct. at 1607, Bousley contended that neither he nor his
    
    counsel correctly understood the essential elements of the crime with which he was charged (§
    
    924(c)(1)) and that, therefore, his plea was constitutionally invalid. The Court noted that it has long
    
    held that "a plea does not qualify as intelligent unless a criminal defendant receives "real notice of
    
    the true nature of the charge against him.' " Id., citing Smith v. O'Grady, 
    312 U.S. 329
    , 
    61 S. Ct. 572
    ,
    
    
    85 L. Ed. 859
     (1941). Bousley did not challenge the validity of his plea on appeal and, by failing to
    
    do so, procedurally defaulted his claim. Bousley, --- U.S. at ----, 118 S.Ct. at 1607. However, the
    
    Court stated that his "claim may still be reviewed in this collateral proceeding if he can establish that
    
    the constitutional error in his plea colloquy "has probably resulted in the conviction of one who is
    
    innocent.' " Id., citing Murray v. Carrier, 
    477 U.S. 478
    , 496, 
    106 S. Ct. 2639
    , 2649, 
    91 L. Ed. 2d 397
    .
    
    The Court went on to explain that to establish "actual innocence," the petitioner must demonstrate
    
    that, "in light of all the evidence, it is more likely than not that no reasonable juror would have
    
    convicted him." Bousley, --- U.S. at ----, 118 S.Ct. at 1607, citing Schlup v. Delo, 
    513 U.S. 298
    ,
    
    327-328, 
    115 S. Ct. 851
    , 867-868, 
    130 L. Ed. 2d 808
     (1995).
    
            Tannenbaum asserts that he did not carry a gun "in relation to" a drug-trafficking offense.
    
    In support of this, he claims that the loaded weapon was "inadvertently" in the waistband of his
    
    pants when the drug transaction occurred and that he did not "intend" for the gun to be part of the
    
    drug transaction.
    
            Neither the defendant's subjective intention for the weapon nor the alleged inadvertency of
    
    its presence was a factor in this Court's determination in Range that the defendant was "carrying"
    
    a firearm during and in relation to a drug-trafficking offense. Range, 94 F.3d at 617. Range held
    
    
    
    
                                                       3
    that in order to convict a defendant for carrying a firearm, it is necessary only to show that the
    
    defendant was "knowingly" carrying a gun when the drug transaction occurred. Id.
    
           At his change-of-plea hearing, Tannenbaum admitted to carrying a loaded weapon in his
    
    waistband during the drug transaction. According to Range, this fact is enough to convict
    
    Tannenbaum under the "carry" prong of § 924(c). Id.
    
            Therefore, because Tannenbaum cannot demonstrate that he is innocent of the "carry" prong
    
    of § 924(c), he may not rely upon Bousley to have his defaulted claim of an unintelligent plea
    
    considered on its merits.
    
           Because Bailey, 516 U.S. at 137, 116 S.Ct. at 501, only affects convictions based upon the
    
    "use" prong of § 924(c)(1), and because Tannenbaum cannot demonstrate that he is innocent of the
    
    "carry" prong of § 924(c)(1), he may not rely upon Bousley, --- U.S. at ----, 118 S.Ct. at 1604, to
    
    have his defaulted claim of an unintelligent plea considered on its merits. Accordingly, the district
    
    court did not clearly err in denying Tannenbaum's § 2255 motion to vacate, set aside, or correct his
    
    sentence for the violation of 18 U.S.C. § 924(c)(1).
    
           AFFIRMED.
    
    
    
    
                                                     4
    

Document Info

DocketNumber: 97-4441

Citation Numbers: 148 F.3d 1262

Filed Date: 8/4/1998

Precedential Status: Precedential

Modified Date: 11/27/2017

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