U.S. v. Ulloa, 95-50302

• Decision Date: 27 August 1996
• Docket Number: No. 95-50302,95-50302
• Citation: 94 F.3d 949
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario ULLOA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 949

94 F.3d 949

UNITED STATES of America, Plaintiff-Appellee, v. Mario ULLOA, Defendant-Appellant.

No. 95-50302.

United States Court of Appeals, Fifth Circuit.

Aug. 27, 1996.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Office of the United States Attorney, San Antonio, TX, James H. DeAtley, Austin, TX, Margaret Feuille Leachman, U.S. Attorney's Office, El Paso, TX, for U.S.

Robert J. Perez, El Paso, TX, for Mario Ulloa, defendant-appellant.

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

Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue in this challenge to a guilty plea under the "use" prong of 18 U.S.C. § 924(c)(1) (additional imprisonment for using or carrying a firearm "in relation to any crime of violence or drug trafficking crime") is our standard of review in light of Ulloa's claim, inter alia, that the post-plea decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), changes our precedent on bartering drugs for firearms. Pursuant to Bailey, Mario Ulloa claims that, even though he bartered drugs for firearms, he did not actively employ the firearms, and that, therefore, his § 924(c)(1) conviction cannot stand. We AFFIRM.

I.

In August 1994, Ulloa was indicted on two drug counts and one count under the "use" prong of § 924(c)(1), which provides in relevant part: "Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such ... crime, be sentenced ... [,] if the firearm is a machine gun, ... to imprisonment for thirty years." Ulloa pled guilty in March 1995. As a result, he received a 30-year term of imprisonment on the firearm "use" count, to be served consecutive to concurrent five-year terms on the drug counts.

To support the plea, the Government offered the requisite factual basis; Ulloa did not make a material objection. In no shape, form, or fashion did he assert that the factual basis was not sufficient for conviction under the "use" prong. His guilty plea was unconditional.

The factual basis presented by the Government was as follows. In July 1994, Ulloa asked Cubillos, an undercover officer who had previously declined Ulloa's offers to sell him drugs, if he knew anyone willing to exchange firearms for drugs or money. Cubillos notified the Bureau of Alcohol, Tobacco and Firearms and was instructed to await a similar offer from Ulloa. Subsequent to Ulloa again approaching him, Cubillos gave him photographs supplied by the ATF of several types of firearms in which Ulloa had expressed interest--machine guns. Ulloa later told Cubillos that they were what he was seeking. Negotiations, including the type and quantity of machine guns desired by Ulloa, took place over the next few days; at one point, Ulloa requested 300 M-16s. It was agreed that, in exchange for five Mac-10 type machine guns, 48 to 50 M-16s, one Uzi, and eight Baretta 9mm pistols, Ulloa would provide $60,000 and two kilograms of cocaine.

In early August 1994, Ulloa delivered the $60,000 as a down payment; the next day, he and Leonardo Vasquez delivered the cocaine to Cubillos. The three then proceeded to a house, where Ulloa and Vasquez were shown the firearms; at one point, Ulloa held a Mac-10 type machine gun. After they had seen and handled the firearms, Ulloa and Vasquez were arrested.

II.

The Supreme Court's recent decision in Bailey, --- U.S. ----, 116 S.Ct. 501, was rendered after completion of briefing in this appeal. It involved two consolidated cases: in the first, a traffic offense stop was followed by an arrest after the police found cocaine inside the car and a firearm in a bag in the locked truck; in the second, arrest occurred after the search of an apartment revealed crack cocaine and an unloaded, holstered firearm in a locked footlocker in a bedroom closet. Each conviction was under both prongs of § 924(c)(1)--"use" and "carry". Id. at ---- - ----, 116 S.Ct. at 503-04.

At issue in Bailey was "whether evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is alone sufficient to support a [§ 924(c)(1) ] conviction for 'use' of a firearm during and in relation to a drug trafficking offense". Id. at ----, 116 S.Ct. at 503. As discussed more fully infra, the Court stated "that 'use' must connote more than mere possession of a firearm by a person who commits a drug offense", id. at ----, 116 S.Ct. at 506, and held that, "[t]o sustain a conviction under the 'use' prong ..., the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime", id. at ----, 116 S.Ct. at 509 (emphasis added). Concluding that the evidence was insufficient to support the convictions under the "use" prong, the Court remanded for consideration of whether there was a basis for upholding them under the "carry" prong. Id.

At issue here is whether, under Bailey, Ulloa "used" the firearms by bartering drugs for them; in short, whether his actions constitute an offense proscribed by that prong of § 924(c)(1). (As discussed infra, Ulloa asserts that bartering, without more, is not "use".) In deciding whether Bailey changes the law in this circuit established by United States v. Zuniga, 18 F.3d 1254 (5th Cir.), cert. denied, 513 U.S. 880, 115 S.Ct. 214, 130 L.Ed.2d 142 (1994) (bartering drugs for firearms is a § 924(c)(1) "use"), we must, as always, first determine the proper standard of review.

As noted, in the process of pleading guilty in district court, Ulloa did not assert that the factual basis did not satisfy the "use" prong. Restated, he raises this issue for the first time on appeal, complicating this initial task.

A.

The district court "should not enter a judgment upon [a guilty] plea without making such inquiry as shall satisfy it that there is a factual basis for the plea." FED.R.CRIM.P. 11(f). On the other hand, Rule 11(h) provides that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." (Emphasis added.)

Ulloa does not contest the findings of fact or other Rule 11 procedures followed, except on one point: "[w]hether the factual basis is sufficient to support ... conviction ... under ... 924(c)(1), where the Government rather than [Ulloa] used firearms as an instrument of barter in a drug trafficking crime." Ulloa presented this issue in his pre-Bailey opening brief, asserting that Zuniga, our bartering drugs for firearms precedent, was wrongly decided under Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), and, alternatively, was distinguishable factually.

After the Government filed its brief, and the time for filing a reply had lapsed (one was not filed), Bailey was rendered. Needless to say, it was the focal point at oral argument. But, no authority need be cited for our rule that we generally will not consider points raised for the first time at argument. And, obviously, in light of the emphasis he placed on Bailey at oral argument, Ulloa should have requested leave post-Bailey to file a supplemental brief. In any event, we are considering the new points raised at oral argument, especially because of two opinions rendered by our court shortly before oral argument which concern pre-Bailey guilty pleas, as discussed infra.

In Ulloa's view, Bailey clarifies that a § 924(c)(1) "use" conviction requires not only "possession" by the defendant, but also "dominion and control" over the firearms, so that the defendant has an opportunity to put the weapons to some form of use, in order to satisfy Bailey 's requirement, --- U.S. at ----, 116 S.Ct. at 509, to "actively employ" them. Here, unlike Zuniga, as discussed infra, the arrest came immediately after the weapons' delivery. Accordingly, Ulloa continues to maintain that Zuniga is distinguishable factually, and maintains that Bailey mandates reversal.

In his brief, Ulloa urged that the standard of review was for harmless error under Rule 11(h); that we "must determine whether the failure to establish a sufficient factual basis affected ... [Ulloa's] substantial rights...." The Government countered in its brief that, because this factual basis challenge was not raised in district court and was, instead, being raised for the first time on appeal, review should be under the strict plain error standard.

Consistent with the Rule 11(h) harmless error standard, which, obviously, is almost identical to that for Rule 52(a) ("Harmless Error"), Rule 52(b) ("Plain Error") is concerned only with "[p]lain errors or defects affecting substantial rights[; they] may be noticed although they were not brought to the attention of the court." Accordingly, review for plain error includes considering whether substantial rights are affected. In recent years, following the Supreme Court clarifying plain error review in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), our court has attempted to apply the plain error standard more consistently and uniformly. See, e.g., Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir.1996) (en banc); United States v. Calverley, 37 F.3d 160 (5th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995); United States v. Rodriguez, 15 F.3d 408 (5th Cir.1994). As discussed in Calverley, when an issue is raised for the first time on appeal, we review only for plain error. 37 F.3d at 162.

Calverley describes the four criteria for finding such error: (1) there must be an error, i.e., a deviation from a legal rule, absent a valid waiver; (2) the error must be plain, i.e., clear or obvious, and " 'clear under current law' at the time of trial"; (3) the error must affect substantial rights, i.e., it must be prejudicial and affect the outcome of the proceedings; and (4) upon finding these...