Latorre v. U.S.

• Decision Date: 15 September 1999
• Docket Number: No. 98-2819,98-2819
• Citation: 193 F.3d 1035
• Parties: (8th Cir. 1999) Jerry J. Latorre, Appellant, v. United States of America, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1035

193 F.3d 1035 (8th Cir. 1999)

Jerry J. Latorre, Appellant, v. United States of America, Appellee.

No. 98-2819

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: September 15, 1999

Filed: October 29, 1999

Appeal from the United States District Court for the Western District of Missouri.

Before BOWMAN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BOWMAN, Circuit Judge.

This case arises from Jerry J. Latorre's guilty plea to a firearms charge in connection with drug trafficking under 18 U.S.C. 924(c)(1). Latorre filed a motion pursuant to 28 U.S.C. 2255 in the District Court to vacate, set aside, or correct his sentence. The District Court denied the motion as procedurally defaulted. Shortly thereafter, the Supreme Court decided Bousley v. United States, 523 U.S. 614 (1998), and clarified the procedural default rule. We vacate the order denying Latorre's 2255 motion and remand the case to the District Court for further consideration in light of Bousley.

I.

In 1994, a grand jury returned an eleven-count indictment against Latorre containing various drug and weapons charges. On January 5, 1995, pursuant to a plea agreement, Latorre pled guilty to Count One, conspiracy to distribute narcotics near a protected location, and Count Three, carrying or using a firearm during and in relation to drug-trafficking crimes under 924(c)(1). In exchange, the government dropped the other charges. Latorre was sentenced to thirty months on the conspiracy charge and a consecutive sixty months on the firearms charge. Later that year, the Supreme Court issued its opinion in Bailey v. United States, 516 U.S. 137 (1995), clarifying the reach of 924(c)(1).

After serving thirty months, Latorre filed a motion under 28 U.S.C. 2255 seeking to set aside the sixty-month sentence on the ground that there is no factual basis to support the 924(c)(1) charge under Bailey. On May 9, 1997, relying on Bousley v. Brooks, 97 F.3d 284 (8th Cir. 1996), the District Court denied Latorre's motion on the ground that his substantive claims were procedurally defaulted. The court, correctly applying our decision in Bousley, reasoned that Latorre's failure to appeal his sentence directly waived his claims in the absence of a showing of cause and actual prejudice. Shortly thereafter, on May 18, 1997, the Supreme Court reversed Bousley and held that a defendant who pled guilty, pre-Bailey, to a 924(c)(1) charge may escape procedural default for failure to appeal if the defendant can establish actual innocence. Bousley v. United States, 523 U.S. 614, 622-24 (1998). Latorre then timely appealed the District Court's denial of his 2255 motion. Appellant argues that, under Bousley, he is entitled to an evidentiary hearing on his claim of actual innocence of the 924(c)(1) charge.

II.

The government argues first, that Latorre already received his hearing, and second, that no evidentiary hearing is necessary because the record proves Latorre is guilty.¹ Both arguments fail.

The District Court did hold a hearing on Latorre's 2255 motion. But given our panel decision in Bousley, the District Court only made findings on cause and prejudice. The court did not hold a hearing on actual innocence; the question, therefore, is whether one is necessary.

This Court reviews de novo the denial of a 2255 motion without an evidentiary hearing and affirms only if the motion, files, and record conclusively show the movant is not entitled to relief. See United States v. Duke, 50 F.3d 571, 576 (8th Cir.), cert. denied, 516 U.S. 885 (1995). In some cases, the clarity of the existing record on appeal makes an evidentiary hearing unnecessary. See, e.g., United States v. Apker, 174 F.3d 934, 937-41 (8th Cir. 1999) (concluding that careful plea colloquy along with "lengthy record" arising from "spate of appeals" by members of large conspiracy combined to obviate any need for remand to district court on actual innocence under 924(c)(1)). Absent such clarity, an evidentiary hearing is required. See Hohn v. United States,193 F.3d 921, 924 (8th Cir.1999) (remanding case to district court for "fact-bound analysis" of actual innocence); Johnson v. United States, 186 F.3d 876, 876 (8th Cir. 1999) (reversing District Court's grant of 2255 motion because no evidentiary hearing was held). At such a hearing, the defendant must establish that, "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (internal quotations omitted). If, as part of the plea agreement, the government withdrew more serious charges, the defendant must demonstrate actual innocence of those charges as well. See id. at 624. The primary source of information for the District Court is the plea proffer record. See id. at 624 n.3. The government, however, is permitted to present "any admissible evidence of petitioner's guilt even if that evidence was not presented during petitioner's plea colloquy and would not normally have been offered before [the Supreme Court's] decision in Bailey." Id. at 624.

The record here contains two relevant items of proof. First, the District Court inquired into the factual basis of Latorre's plea pursuant to Fed. R. Crim. P. 11(f). During this proceeding, Latorre admitted his "use" of a firearm during and in relation to drug-trafficking offenses. Specifically, he admitted that he had a firearm "with him" during the commission of drug-trafficking offenses. Second, Latorre also admitted specific conduct in an affidavit submitted to the District Court as part of the 2255 proceedings. These admissions establish only the following: Latorre owned guns and kept them in his home, he sold drugs in his home, and, at times, his customers may have seen his guns in his home. For the reasons below, Latorre's various admissions do not conclusively show that he will be unable to prove his innocence of the 924(c)(1) use or carry charge.² The government alleges that it has further proof, and even specifies the content of witnesses' potential testimony. However, these witnesses were not heard at the 2255 hearing in the District Court. Assertions by counsel cannot foreclose an evidentiary hearing, at which such testimony can be taken and subject to cross-examination.

We start with Latorre's Rule 11(f) plea colloquy. The government's proffer of proof contains little about the 924(c)(1) count. Specifically, the government's attorney stated the following:

Latorre had with him on various times when he sold marijuana and other drugs, marijuana specifically, to an undercover agent or to a confidential informant, he had firearms with him. Specific firearms listed in Count Three were a .22 caliber North American Arms derringer and two nine millimeter pistols which where used during and in relationship with drug trafficking offenses. Tr. of Guilty Plea and Sentencing at 14-15. Latorre agreed to this description without further elaboration. Id. at 16.

Two parts of the plea colloquy require analysis. First, it is plain that Latorre's agreement to the bare legal conclusion that he "used" firearms "during and in relationship with" drug-trafficking offenses is insufficient to foreclose his claim of actual innocence. At the time of his plea, this Court's precedent dictated that 924(c)(1) "use" merely required "that the weapon be present and available, in the house in which the drugs and cash are located, in the event it is needed." United States v. Johnson, 12 F.3d 827, 832 (8th Cir.), cert. denied, 511 U.S. 1095 (1994). Bailey, however, specifically rejected that meaning of "use," requiring "active employment" of a firearm. Bailey, 516 U.S. at 148-49. Given the change in the governing definition, Latorre's pre-Bailey admission that he "used" a firearm is not inconsistent with his innocence.

Second, Latorre's admission during the plea colloquy that he had guns "with him" is also inconclusive. This statement demonstrates nothing more than possession, which is insufficient to prove either "use" or "carry." See Bailey, 516 U.S. at 143 (Congress could have replaced "use or carry" with "possess" but chose not to do so); see also id. at 146 (interpreting "use" more narrowly than possession preserves meaningful role for "carry").

A more serious issue is the content of Latorre's affidavit submitted with his pro se motion to reconsider the denial of his 2255 motion. It contains the following language:

That further, during several of the marijuana sales that I made to my friends, firearms may have been visible to the participants; but these firearms were present in the basement only incidentally to the drug transactions and they were never a part of, or used to facilitate, the drug transaction.

This "display" of weapons, the government asserts, constitutes use under Bailey. The government's position presumes a per se rule that the "visible presence" of a firearm during a drug sale constitutes use during and in relation to the drug crime. Such a holding would be contrary to Bailey and the cases that follow it.

The starting point, of course, is the interpretation of 924(c)(1) provided by the Supreme Court. The core holding of Bailey is that "use" means "active employment" of a firearm, not "inert presence." Bailey, 516 U.S. at 143-50. Active employment includes "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire a firearm." Id. at 148. A defendant does not violate 924(c)(1) "merely [by] storing a weapon near drugs or drug proceeds," or by "placement of a firearm to provide a sense of security or to embolden." Id. at 149.

The Court's further explanation is instructive: "[A] reference to a firearm calculated to bring about a change in the circumstances of the predicate offence is a 'use,' just as the silent but obvious and forceful presence of a gun on a table can be a 'use.'" Id. at 148 (emphasis added). This sentence has been described as endorsing the "threat-as-use" the...