United States v. Trevino ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20686
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAYMOND PALOMO TREVINO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(95-CR-20603)
_________________________________________________________________
November 29, 1996
Before KING, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Raymond Palomo Trevino appeals his conviction and sentence
under 18 U.S.C § 924(c)(1) for aiding and abetting the use of a
firearm during and in relation to a drug-trafficking crime. He
argues that, in light of the Supreme Court decision in Bailey v.
United States, 116 S. Ct. 501 (1995), the district court’s
acceptance of his guilty plea was reversible error because the
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
record contained an inadequate factual basis to support it.
Federal Rule of Criminal Procedure 11(f) provides that
before entering judgment upon a guilty plea, the court should
make “such inquiry as shall satisfy it that there is a factual
basis for the plea.” The court may discharge this duty through
an inquiry of the defendant or an examination of relevant
materials in the record. United States v. Adams, 961 F.2d 505,
508 (5th Cir. 1992). The record must reveal specific factual
allegations supporting each element of the offense. Id.
Trevino contends that the record contains no facts to
establish that he “used” a firearm in relation to the drug
offense as that term is defined in Bailey. We disagree.
Although not referred to during the plea hearing, the pretrial
detention order expressly finds that one of Trevino’s
coconspirators pointed a gun at police officers while endeavoring
to flee from the scene of an attempted drug theft. This conduct
falls squarely within the Bailey definition of “use.”1 Under
Pinkerton v. United States, 328 U.S. 640 (1946), Trevino can be
held responsible for his coconspirator’s use of a firearm in
furtherance of the conspiracy. See United States v. Fike, 82
F.3d 1315, 1328 (5th Cir. 1996), cert. denied, 65 U.S.L.W 3264
1
In Bailey, the Supreme Court held that under § 924(c)(1),
the term “use” means “active employment,” including “brandishing,
displaying, bartering, striking with, and most obviously, firing
or attempting to fire, a firearm.” 116 S. Ct. at 508. The Court
noted that “even an offender’s reference to a firearm in his
possession could satisfy § 924(c)(1).” Id.
2
(Oct. 7, 1996) (No. 96-5403).
Accordingly, we hold that even if the district court failed
to comply with Rule 11(f) by not establishing an adequate factual
basis at the plea hearing, such failure was harmless error
because the record as a whole establishes a sufficient factual
basis to satisfy each element of the offense. See Adams, 961
F.2d at 512-13.
AFFIRMED.
3