U.S. v. Montano, No. 03-11950.

• Decision Date: 04 February 2005
• Docket Number: No. 03-11950.
• Citation: 398 F.3d 1276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco MONTANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

398 F.3d 1276

UNITED STATES of America, Plaintiff-Appellee, v. Francisco MONTANO, Defendant-Appellant.

No. 03-11950.

United States Court of Appeals, Eleventh Circuit.

February 4, 2005.

Paul James Kaplan (Court-Appointed), Alston & Bird LLP, Atlanta, GA, for Defendant-Appellant.

Amy Levin Weil, H. Allen Moye, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

ON PETITION FOR REHEARING

Before BARKETT and HILL, Circuit Judges, and FORRESTER^*, District Judge.

PER CURIAM:

Plaintiff-Appellee's Petition for Rehearing filed November 10, 2004 is GRANTED in part, in order to remedy incorrect references to 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) governs the statute of limitations for state prisoners seeking post-conviction relief. Since Montano is a federal prisoner, the opinion should instead reference 28 U.S.C. § 2255, ¶ 6, the equivalent provision governing federal prisoners. Accordingly, the Court substitutes the following opinion. Plaintiff-Appellee's Petition for Rehearing is otherwise DENIED.

Francisco Montano appeals the district court's denial of his motion seeking leave to file an untimely 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence under 18 U.S.C. § 924(c), which prohibits use of a firearm during or in relation to a felony drug trafficking transaction. Pursuant to a negotiated plea agreement, Montano pled guilty on July 24, 1998 and was sentenced on October 6, 1998, on two counts: the above-mentioned § 924(c) charge, as well as possession with intent to distribute methamphetamine under 21 U.S.C. § 841(a)(1). Montano did not file a direct appeal. Montano subsequently filed his motion for permission to file an untimely § 2255 motion, alleging inter alia actual innocence of the § 924(c) firearm conviction.¹ The district court denied Montano's motion, finding that he was not actually innocent of the § 924(c) charge and thus declining to answer whether actual innocence is sufficient grounds to waive the period of limitations for filing of a § 2255 motion. Granting Montano's certificate of appealability, the district court certified two related questions for our review. First, does bartering drugs for guns constitute "use" of a firearm within the meaning of § 924(c)? If not, does actual innocence excuse Montano's failure to bring his § 2255 motion within the one-year statutory period under 28 U.S.C. § 2255, ¶ 6 for filing a motion to vacate a sentence?

On April 13, 1998, state and federal law enforcement officers directed a confidential informant to meet with Montano in a grocery store parking lot in Gainesville, Georgia. Inspector Bennett of the Hall County Sheriff's Office accompanied the confidential informant to this meeting. After introducing Inspector Bennett to Montano, the confidential informant left the scene. Montano told Inspector Bennett he wished to obtain.38 caliber revolvers, 9 mm pistols, and .380 caliber pistols. Further, Montano informed Inspector Bennett he wished to exchange methamphetamine for the guns. Inspector Bennett agreed to the methamphetamine-for-guns deal and stated he would inform Montano when the guns were available.

On April 23, 1998, Inspector Bennett met Montano in the same Gainesville, Georgia parking lot and allowed Montano to inspect eleven firearms. Inspector Bennett advised Montano that he wanted one-quarter pound of methamphetamine, and would pay for the difference between gun value and drug value with cash. Montano then informed Inspector Bennett he would exchange the one-quarter pound of methamphetamine for the eleven guns and $1650.00 in cash. After striking this deal, Montano left to obtain the methamphetamine, and Inspector Bennett went to arrange for the additional cash. Approximately one hour later, the two men met actually to complete the transaction. Once Montano produced the quarter-pound of methamphetamine, he was immediately arrested. Montano never took possession of the firearms. A search of his vehicle revealed additional supplies of methamphetamine. Montano was arrested with approximately 117.2 grams of methamphetamine in his possession, the quarter-pound (110 grams) involved in the drugs-for-guns transaction, as well as 7.2 additional grams of methamphetamine found in his car. Montano's presentence report also reveals that he was involved in a 111.1 gram cocaine transaction on October 20, 1997, a 25.9 gram methamphetamine transaction on January 28, 1998, and the sale of a firearm on March 31, 1998.

Montano was indicted on May 28, 1998 on five counts:² conspiring to possess methamphetamine and cocaine hydrochloride with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846; knowingly and intentionally possessing cocaine hydrochloride on or about October 20, 1997 with intent to distribute in violation of 21 U.S.C. § 841(a)(1); two counts of knowingly and intentionally possessing methamphetamine on or about January 28, 1998 and April 23, 1998 with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and using and carrying a firearm during and in relation to a drug trafficking crime — the April 23, 1998 possession of methamphetamine — in violation of 18 U.S.C. § 924(c). On July 24, 1998, Montano entered into a plea agreement in which he pled guilty to counts seven and eight of the indictment: possession of methamphetamine with intent to distribute on or about April 23, 1998, and use of a firearm during and in relation to that drug trafficking crime. As part of this plea agreement, Montano waived his rights under 18 U.S.C. § 3742 to appeal his sentence³ and agreed to cooperate with the government. The government subsequently dismissed the remaining three counts of the indictment pending against Montano. At his October 6, 1998 sentencing, Montano received 45 months' imprisonment on each of the two counts to which he pled guilty, these two sentences to run consecutively. Montano's total sentence was reduced by the district court's granting of the government's motion to reduce sentence pursuant to U.S.S.G. § 5K1.1 for substantial cooperation. Montano was also assessed five years' supervised release on the drug count and three years' supervised release on the gun count, these terms to run concurrently, and a $2,000 fine.

Montano's appeal presents us with a procedural question: Can Montano bring his § 2255 motion to set aside his § 924(c) conviction and sentence more than one year after that conviction became final, or is that motion now procedurally barred? As Montano recognized in his motion to the district court, 28 U.S.C. § 2255, ¶ 6 places a one-year period of limitations on the filing of motions to vacate sentence under § 2255. The statute provides:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255, ¶ 6. The parties do not dispute that Montano's § 2255 motion was filed more than one year after the date upon which the judgment became final.⁴ Generally, if a challenge to a conviction or sentence is not made on direct appeal, it will be procedurally barred in a § 2255 challenge. Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.1994). A defendant cannot overcome this procedural bar unless he can demonstrate a cause for this default and show actual prejudice suffered as a result of the alleged error. Id. In the alternative, a defendant can also overcome the procedural bar created by the failure to appeal if he could show a fundamental miscarriage of justice; "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Id. (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Montano contends that he is actually innocent of the § 924(c) conviction and contends this actual innocence provides an exception to the one-year filing requirement under § 2255, ¶ 6.⁵ In order to determine whether Montano can surmount the procedural bar to the filing of his § 2255 petition, then, we must first examine the merits of Montano's underlying claim to determine if he is actually innocent of the crime to which he pled guilty: use of a firearm during a drug transaction in violation of § 924(c).

I. "Use" of a Firearm

In Smith v. United States, 508 U.S. 223, 241, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), aff'g, 957 F.2d 835 (11th Cir.1992), the Supreme Court affirmed our holding that bartering guns to obtain drugs was "use" of a firearm within the meaning of 18 U.S.C. § 924(c).⁶ In Smith, the petitioner traveled to Florida hoping to buy cocaine to resell for a profit. Id. at 225, 113 S.Ct. 2050. While in Florida, Smith met with an undercover officer and offered to trade his automatic MAC-10 firearm for two ounces of cocaine. Id. at 225-26, 113 S.Ct. 2050. The undercover officer agreed to the deal and left to obtain the cocaine. Id. at 226, 113 S.Ct. 2050. Smith did not wait for the officer's return, but rather drove off. Id. After a high-speed chase, Smith was arrested with the MAC-10 and a quantity of other weapons. Id. Smith was charged with a violation of § 924(c) but argued that "use" of a...