United States v. Rivas

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 6, 1996
• Docket: 95-20294
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-20294 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

OSCAR ORLANDO RIVAS,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas ______________________________________________

May 30, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Oscar Orlando Rivas appeals his conviction after a plea of

guilty for using or carrying a firearm during a drug trafficking

offense and his sentence for conspiracy to possess with intent to

distribute cocaine. In our view, the principal issue presented on

this appeal is Rivas's attack on the sufficiency of the factual

basis for his guilty plea. Because we conclude that the factual

basis was sufficient and, additionally, that the district court did

not err in sentencing Rivas, we affirm.

I. FACTS AND PROCEDURAL HISTORY

In May 1994, Department of Public Safety (DPS) officers sent

1 an informant to Dare Motors in Houston to contact Domingo Rodriguez

in connection with a drug trafficking investigation in

Bryan/College Station, Texas. The attempt was unsuccessful, and no

further contact was made until September.

In September, Rivas talked to the confidential informant

regarding the drug trafficking at Dare Motors and the lack of

reliability of the source of the drug supply. The informant

purportedly would take the place of the unreliable supplier. The

tentative agreement was that thirty kilograms of cocaine would be

provided. However, because the circumstances of the requested

delivery were unacceptable to the task force, the transaction did

not take place.

On October 5, 1994, Rivas called the informant, indicating

that "his people were ready to go ahead." Thereafter, DPS

undercover officers contacted Rodriguez and arrangements were made

for the delivery of ten kilograms of cocaine that Rodriguez would

pay for at the time of delivery, five kilograms of cocaine that

would be fronted by the officers to Rodriguez, and also the

delivery of an additional fifteen kilograms at a later date.

On October 6, as planned, Zeek Cavazos, the undercover

officer, remained at Dare Motors with Rodriguez and Luis Gonzalez

to view the money, and Rivas left with the informant to inspect the

cocaine. After Rivas and the informant left Dare Motors in the

undercover vehicle, they were stopped by DPS officers on the

freeway. The officers arrested Rivas, who had a 9mm Beretta pistol

underneath his seat.

After initially entering a not guilty plea, Rivas pleaded

2 guilty at rearraignment, without the benefit of a plea agreement,

to two counts of a three-count indictment: conspiracy to possess

with intent to distribute cocaine (Count I) and using or carrying

a firearm during a drug-trafficking offense (Count II). The

district court sentenced him to 151 months in prison--the bottom of

the guideline range--as to Count I, to a consecutive five-year term

as to Count II, and to concurrent five- and three-year terms of

supervised release.

II. SUFFICIENCY OF THE FACTUAL BASIS FOR THE PLEA

Rivas argues that the district court erred in finding that

there was a sufficient factual basis for his plea of guilty to the

offense of using or carrying a firearm during a drug trafficking

offense in violation of 18 U.S.C. § 924(c). The district court's

acceptance of a guilty plea is considered a factual finding that

there is an adequate basis for the plea. We therefore review this

finding for clear error. United States v. Adams, 961 F.2d 505, 509

(5th Cir. 1992).

Section 924(c)(1) provides, in pertinent part, that:

Whoever, during and in relation to any crime of violence or drug trafficking crime . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . .

Relying on the recent Supreme Court decision in Bailey v.

United States, __ U.S. __, 116 S.Ct. 501 (1995), Rivas contends

that the factual basis for the guilty plea is insufficient to show

that he "used" a firearm during the offense. In Bailey, the

Supreme Court held that "§ 924(c)(1) requires evidence sufficient

3 to show an active employment of the firearm by the defendant, a use

that makes the firearm an operative factor in relation to the

predicate offense." 116 S.Ct. at 505 (emphasis in opinion). The

Court then set forth examples of activities that constitute active

employment of a firearm, including brandishing, displaying,

striking with, and of course, firing or attempting to fire the gun.

In the instant case, at the rearraignment, while detailing the

factual basis for the plea, the Government stated that "[a]t the

time [Rivas] was arrested he was carrying a 9mm Beretta in the

front of his pants, which he had his hand on when the officer

convinced him that probably wouldn't be a good idea." The district

court subsequently inquired whether the facts recited by the

Government were true, and Rivas replied "[n]o." Defense counsel

explained that "[t]he only thing he is saying, Judge, is that the

pistol he had was underneath the seat. He is saying it was

underneath the seat as opposed to being in the front of his pants."

(emphasis added). The district court responded that for the

purposes of the guilty plea, it "doesn't matter." (emphasis

added).

It is clear that, because the rearraignment was held prior to

Bailey, the district court, at that time, was correct. Our prior

cases held that all that was needed to establish "use" was "that

the firearm was available to [the defendant] to facilitate the

commission of an offense." United States v. Rocha, 916 F.2d 219,

237 (5th Cir. 1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057

4 (1991) (citation omitted).1 We need not determine whether Rivas

used his firearm in relation to this offense. In this regard, we

note that the Supreme Court in Bailey remanded the case for

consideration whether the evidence satisfied the "carrying" prong

of § 924(c). Rivas pleaded guilty to count two of the indictment,

which charged him with using or carrying a firearm. Accordingly,

we must determine whether the factual basis is sufficient to meet

the "carrying" requirement of § 924(c). If so, the district

court's response of it "doesn't matter" would be correct in this

case.

As recognized by the Eleventh Circuit, because Bailey did not

address the "carrying" requirement, prior precedent analyzing that

prong was "not affected." United States v. Farris, 77 F.3d 391,

395 n.4 (11th Cir. 1996). Prior to Bailey, in United States v.

Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir.), cert. denied, 504 U.S.

928 (1992), we examined the "carrying" requirement of § 924(c) and

explained that the "word `carry' derives from the french carier,

which means `to transport in a vehicle." (quoting Webster's Third

International Dictionary 353 (1966)). Webster provided the

following definitions of "carry": "`to move while supporting (as

in a vehicle or in one's hands or arms): move an appreciable

distance without dragging: sustain as a burden or load and bring

along to another place.'" Id. We observed that the legislative

history did not indicate that the word "carry" should be given any

1 Bailey is applicable to this case because a newly announced rule applies to a criminal case on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708 (1987).

5 meaning but its ordinary or literal meaning. Significantly, we

also recognized that carrying on the person is different from

carrying in a vehicle "because the means of carrying is the vehicle

itself." Thus, we held that the "carrying" requirement of § 924(c)

is met "if the operator of the vehicle knowingly possesses the

firearm in the vehicle during and in relation to a drug trafficking

crime." Id. at 104. Accord United States v. Speer, 30 F.3d 605,

612 (5th Cir. 1994), cert. denied, __ U.S. __, 115 S.Ct. 768

(1995); United States v. Ruiz, 986 F.2d 905, 910 (5th Cir.), cert.

denied, __ U.S. __, 114 S.Ct. 145 (1993).

Although Rivas was a passenger rather than the driver of the

vehicle, we do not believe that such a distinction means that he

was not "carrying" the firearm. At his rearraignment, Rivas did

not contest the part of the factual basis indicating that he

apparently was going for the gun "when the officer convinced him

that probably wouldn't be a good idea." "The only thing" Rivas

disputed was that the gun was in the waistband of his pants. At

sentencing, Rivas admitted that "the pistol he had was underneath

the seat." (emphasis added). In his written objections, Rivas

stated "that the pistol he had in his possession was placed

underneath the car seat." He therefore admitted to knowingly

possessing the firearm in the vehicle. Further, it is undisputed

that he had the gun during or in relation to the drug trafficking

offense. As such, Rivas's actions were sufficient to constitute

carrying under § 924(c).

III. SENTENCING CHALLENGES

Rivas also challenges his sentence for conspiracy to possess

6 with intent to distribute cocaine. We find that Rivas's complaints

that the district court erred in denying him a reduction for

acceptance of responsibility and in failing to make express

findings regarding the amount of cocaine attributable to him are

without merit. We note that the district court did not clearly err

in denying him the reduction for acceptance of responsibility

inasmuch as the record reflects that Rivas attempted to trivialize

and mitigate his significant role in the conspiracy. Further, the

district court adopted the findings of the PSR, which clearly

reflects that 27 kilograms of cocaine were reasonably foreseeable

to him.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.