Arango-Alvarez v. U.S.
| Decision Date | 22 January 1998 |
| Docket Number | No. 95-3380,P,ARANGO-ALVARE,95-3380 |
| Parties | Luisetitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before CUMMINGS, COFFEY, and EASTERBROOK, Circuit Judges.
In 1988, Luis Arango-Alvarez pleaded guilty pursuant to a written plea agreement to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I) and one count of possessing a firearm in relation to a drug crime in violation of 18 U.S.C. § 924 (Count VI). The district court sentenced Arango-Alvarez to 121 months' incarceration on Count I and the mandatory 60 months' incarceration on Count VI to run consecutive to Count I. Arango-Alvarez did not challenge his convictions or sentence on direct appeal. In 1995, Arango-Alvarez filed a pro se motion to vacate, correct, or set aside his sentence on Count VI pursuant to 28 U.S.C. § 2255 based on the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Arango-Alvarez appeals from the district court's denial of his § 2255 motion contending that there was no factual basis for his guilty plea and that he was denied effective assistance of counsel during the plea phase of his action. 1 We affirm.
Based on the government's proffer, Arango-Alvarez's testimony at the plea hearing, and Arango-Alvarez's written plea agreement, the facts reveal that Arango-Alvarez was involved in a drug conspiracy to deliver a multi-kilogram shipment of cocaine from Los Angeles to Chicago. After Arango-Alvarez arranged for a drug pick-up in Los Angeles, his co-conspirator, Santos Martinez, agreed to transport the eighteen kilograms of cocaine hidden in a secret compartment of a Mazda RX-7 to Chicago, Illinois. Martinez was stopped for speeding in Nebraska at which time he consented to the trooper's request to search his car. After discovering the hidden compartment containing the eighteen kilograms of cocaine, the trooper arrested Martinez. At that time, Martinez agreed to cooperate with law enforcement officers in their investigation of Arango-Alvarez, and he participated in a controlled delivery of the cocaine and met with Arango-Alvarez and another co-conspirator, Fernando Rodriguez. The police followed Arango-Alvarez and Rodriguez, who were driving in Arango-Alvarez's Nissan. Martinez followed them in the Mazda, which he turned over to Rodriguez. Rodriguez drove the Mazda back to Arango-Alvarez's house while Arango-Alvarez drove the Nissan. Arango-Alvarez, however, parked the Mazda in his garage on Chicago's near northwest side. The police arrested Arango-Alvarez and Rodriguez shortly thereafter. At the time of their arrest, the police found a large gym bag next to the car that contained two .22 semi-automatic pistols with ammunition, as well as a notebook documenting prior drug deals. A fingerprint analysis revealed Arango-Alvarez's fingerprints on the notebook.
Arango-Alvarez acknowledged in his written plea agreement that he conspired to possess cocaine with the intent to distribute it as part of a conspiracy. The plea agreement stated that Arango-Alvarez also "acknowledges that when he was arrested a gym bag containing two .22 semi-automatic pistols was found in the garage near the Mazda; defendant acknowledges that he had control over those pistols." ). Arango-Alvarez's written plea agreement also stated:
(b) As charged in Count Six of the indictment, defendant Luis Arango-Alvarez acknowledges that on July 23, 1988 he actually and constructively used and carried firearms, namely two .22 caliber semiautomotic [sic] pistols, serial numbers 141708 and C70567. These pistols were used and carried in connection with the possession and transportation of what he believed was eighteen kilograms of cocaine. They were found, upon his arrest, in a gym bag near the Mazda which was parked in the garage at 2277 N. Clybourn.
(Plea Agreement p5(b)).
After the government proffered specific evidence underlying both the conspiracy and firearm charges at the plea hearing, the district court asked Arango-Alvarez if he disagreed with any part of the recitation of the facts in the government's statement to which Arango-Alvarez replied no. The court also asked Arango-Alvarez if he wanted to add anything to the statement. He replied no. The district court then asked Arango-Alvarez to tell the court in his own words what happened regarding the commission of the crimes. Arango-Alvarez gave a brief narrative regarding Martinez's return from Los Angeles detailing the individual roles played by the other members in the conspiracy. At that point, the district court asked a number of clarifying questions involving the firearm offense:
(Plea Hearing Transcript at 21-22). The district court found that Arango-Alvarez entered his plea of guilty knowingly and voluntarily and that his plea was supported by a factual basis pursuant to the requirements of Federal Rule of Criminal Procedure 11(f).
We review the district court's denial of a § 2255 motion regarding questions of law de novo and the court's factual findings for clear error. Wilson v. United States, 125 F.3d 1087, 1090 (7th Cir.1997). To succeed on a § 2255 petition, a defendant must demonstrate that the sentence imposed upon him was in violation of the Constitution or the laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack. Scott v. United States, 997 F.2d 340, 341 (7th Cir.1993).
In his § 2255 motion, Arango-Alvarez asserts that there was an insufficient factual basis in his guilty plea for the district court to find that he "used" or "carried" a firearm during the commission of a drug crime for the purposes of 18 U.S.C. § 924(c)(1). See Bailey, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472. However, we must make clear that Arango-Alvarez did not directly appeal his § 924(c)(1) conviction; thus, we are called upon to determine whether he is procedurally barred from bringing his claim collaterally. Young v. United States, 124 F.3d 794, 796 (7th Cir.1997). The Supreme Court has articulated that a § 2255 motion is not a vehicle to advance arguments that were not made on direct appeal, especially if the argument relies entirely on a statute. Reed v. Farley, 512 U.S. 339, 353-54, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994). An error of law not originally raised on direct appeal may only be brought under § 2255 if the error gives rise to a "fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974). In Davis, the Supreme Court articulated that if a new legal development establishes that the conviction for an act is not criminal, the imprisonment for this non-crime is a miscarriage of justice. Id. However, "nonconstitutional errors which could have been raised on appeal but were not, are barred on collateral review--regardless of cause and prejudice." Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir.1988) (citing Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969)).
Arango-Alvarez contends that he is incarcerated for actions that fall short of constituting a crime because there was no factual basis for the court to hold that he "used" a firearm within the meaning of § 924(c)(1). In order to establish a violation of § 924(c)(1), the government must establish that the defendant carried or used a firearm during and in relation to a drug trafficking crime. 18 U.S.C. § 924(c)(1). In Bailey, the Supreme Court narrowed the definition of "use" under § 924(c)(1), holding that "use" involves the defendant's active employment of a firearm. Bailey, 516 U.S. at 141-43, 116 S.Ct. at 505. The Bailey Court, however, did not elucidate and explain the meaning of "carry," thereby leaving the "carry" prong untouched. Broadway v. United States, 104 F.3d 901, 904 (7th Cir.1997); United States v. Molina, 102 F.3d 928, 931 (7th Cir.1996).
Arango-Alvarez's argument based on the "use" prong fails because he pleaded guilty and was convicted of both using and carrying a firearm under § 924(c)(1). 2 The district court articulated that its denial of Arango-Alvarez's § 2255 motion was based on the carry prong of § 924(c)(1). Because Arango-Alvarez was convicted on the "carry" prong, Bailey does not undermine the plea and is inapplicable to Arango-Alvarez's § 2255 motion. See Broadway, 104 F.3d at 904. Indeed, this court has recently stated that "[i]f the plea of guilty necessarily covers the act of 'carrying' a...
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