U.S. v. Andrade
Decision Date | 14 May 1996 |
Docket Number | No. 95-20339,95-20339 |
Citation | 83 F.3d 729 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio ANDRADE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Paula Camille Offenhauser, U.S. Attorney's Office, Houston, TX, for United States of America, plaintiff-appellee.
Roland E. Dahlin, II, George D. Murphy, Jr., Federal Public Defenders, Thomas S. Berg, Assistant Federal Public Defender, Houston, TX, for Juan Antonio Andrade, defendant-appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before: SMITH, BENAVIDES and DENNIS, Circuit Judges.
In this direct appeal from his conviction and sentence, Juan Antonio Andrade seeks to vacate his guilty plea to one count of use of a firearm during and in relation to drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1), on the ground that an intervening Supreme Court decision interpreting that statute, Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), renders the factual basis of his plea insufficient to support his conviction.
Andrade was charged by superseding indictment with one count each of conspiring to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846; aiding and abetting the possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2; knowing use of a firearm during and in relation to these drug trafficking offenses, in violation of 18 U.S.C. § 924(c)(1); and knowing possession of a firearm affecting interstate commerce by an illegal alien, in violation of 18 U.S.C. § 922(g)(5). On January 19, 1995, Andrade pleaded guilty to all four counts. He was sentenced on April 13, 1995, to a total of 228 months imprisonment and five years of supervised release, including a consecutive term of imprisonment of 60 months for the use of a firearm charge, as required by § 924(c)(1). On May 1, 1995, Andrade filed a timely notice of appeal of his conviction and sentence.
The factual basis supporting the conviction for violating 18 U.S.C. § 924(c)(1) established that during a consent search of Andrade's residence, police found a .357 magnum revolver under a mattress in the bedroom, approximately six to eight feet from the closet in which a stash of cocaine was hidden. At the time of his plea, these facts adequately supported a conviction for the firearm offense in this circuit. See, e.g., United States v. Willis, 6 F.3d 257, 264-65 (5th Cir.1993); United States v. Mora, 994 F.2d 1129, 1140-41 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 417, 126 L.Ed.2d 363 (1993).
While this appeal was pending, the Supreme Court decided Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In that case, the Court held that a conviction for use of a firearm requires a showing "that the defendant actively employed the firearm during and in relation to the predicate crime." Id. at ----, 116 S.Ct. at 509. As the Court observed, Id. at ----, 116 S.Ct. at 508. The factual basis for Andrade's plea clearly establishes no more than mere possession and, under Bailey, is insufficient to support a conviction for use of a firearm in relation to the predicate drug offenses. 1 Indeed, the Government concedes that the factual basis in the record is inadequate under Bailey and that the appropriate remedy is to vacate Andrade's conviction on count 3 of the indictment. 2
A plea of guilty typically waives all non-jurisdictional defects in the proceedings below. See, e.g., United States v. Miramontez, 995 F.2d 56, 60 (5th Cir.1993); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir.1993). Nonetheless, in this particular context, where intervening law has established that a defendant's actions do not constitute a crime and thus that the defendant is actually innocent of the charged offense, application of this rule is misplaced. We have previously permitted attacks on guilty pleas on the basis of intervening decisions modifying the substantive criminal law defining the offense. See, e.g., United States v. Knowles, 29 F.3d 947 (5th Cir.1994) ( ); United States v. Presley, 478 F.2d 163 (5th Cir.1973) ( ); see also United States v. Lucia, 423 F.2d 697 (5th Cir.1970) (en banc) ( )(affirming in part United States v. Lucia, 416 F.2d 920 (5th Cir.1969)), cert. denied, 402 U.S. 943, 91 S.Ct. 1607, 29 L.Ed.2d 111 (1971). Similarly, courts have permitted guilty pleas to be withdrawn where the defendant pleaded guilty to something that is not a crime. In United States v. Barboa, 777 F.2d 1420 (10th Cir.1985), a defendant brought a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging inter alia that his guilty plea to a conspiracy charge was invalid because his alleged co-conspirator was actually a government informant. The court held that no indictable conspiracy existed where the only parties were the defendant and government agents or informants, and that the district court had abused its discretion in denying an evidentiary hearing to determine whether the person with whom the defendant purportedly conspired was actually a government agent. The court, moreover, observed that "[i]f Barboa pled guilty to something which was not a crime, he is not now precluded from raising this jurisdictional defect, which goes 'to the very power of the State to bring the defendant into court to answer the charge brought against him.' " Id. at 1423 n. 3 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974). See also United States v. Ruiz-del Valle, 8 F.3d 98 (1st Cir.1993) ( ).
We note, moreover, that every circuit court to have considered whether a defendant may withdraw his plea to a violation of 18 U.S.C. § 924(c)(1) in light of Bailey 's change in the law has addressed this issue on the merits. See United States v. Garcia, 1996 WL 128123 (8th Cir. March 25, 1996) (unpublished disposition) ( ); United States v. Keebler, 78 F.3d 598 (10th Cir.1996) (table), 1996 WL 84104 (10th Cir. Feb. 27, 1996) ( ); United States v. Abdul, 75 F.3d 327 (7th Cir.1996) ( ); United States v. Riascos-Suarez, 73 F.3d 616, 622-23 (6th Cir.1996) ( ); see also Bell v. United States, 917 F.Supp. 681 (E.D.Mo.1996) (...
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