U.S. v. Wainuskis

• Decision Date: 09 April 1998
• Docket Number: No. 96-60742,96-60742
• Citation: 138 F.3d 183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christine WAINUSKIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 183

138 F.3d 183

UNITED STATES of America, Plaintiff-Appellee, v. Christine WAINUSKIS, Defendant-Appellant.

No. 96-60742.

United States Court of Appeals, Fifth Circuit.

April 9, 1998.

Giles Wood Bond, Jr., Asst. U.S. Atty., Jackson, MS, for Plaintiff-Appellee.

Christine Wainuskis, Tallahassee, FL, pro se.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, DUHE and DeMOSS, Circuit Judges.

DUHE, Circuit Judge:

Defendant-Appellant Christine Wainuskis appeals the district court's denial of her 28 U.S.C. § 2255 motion to set aside her judgment of conviction for violation of 18 U.S.C. § 924(c)(1) because of a change in the law, resulting from a clarification of the meaning of "use" of a firearm in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). For reasons that follow, we affirm the district court's denial of her motion.

I.

Following an investigation of her activities and a search of the residence she shared with Joseph Materne ("Materne"), Christine Wainuskis ("Wainuskis") was indicted by a federal grand jury on four counts involving drugs and weapons: conspiracy to possess with intent to distribute; possession with intent to distribute; knowing use or carrying of a firearm during or in relation to a drug trafficking offense; and felon in possession of a firearm. Officers found methamphetamine, scales, baggies, other items associated with the packaging and distributing of illegal drugs, and 27 guns during the search. Wainuskis was discovered in a bedroom of her residence, lying on a bed with a loaded gun tucked under the mattress. Her co-defendant, Materne, was seated near two weapons, both of which were visible to the searching officers and easily accessible to him.

In exchange for the government dropping charges of conspiracy to possess with intent to distribute methamphetamine and of possession with intent to distribute that drug, Wainuskis pled guilty to the remaining two counts: violations of 18 U.S.C. 924(c)(1) ¹ and 18 U.S.C. § 922(g) (felon in possession of a firearm). ² She admitted that the underlying drug trafficking offense in her violation of § 924(c)(1) was possession with intent to distribute methamphetamine. After hearing the plea colloquy and reviewing the Presentencing Investigation Report ("PSR"), the district judge imposed the mandatory 5-year sentence for the violation of § 924(c)(1). He departed downward from the sentencing guidelines on the remaining count and assigned a 30-month sentence to run consecutively.

Wainuskis moved to set aside her conviction and sentence for the violation of § 924(c)(1), based on a change in the law resulting from the clarification of "use" of a firearm in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The district court referred the motion to a magistrate judge, who determined that the gun confiscated from under Wainuskis's mattress at the time of her arrest was not "used or carried" in relation to a drug trafficking offense as defined in Bailey and in United States v. Andrade, 83 F.3d 729 (5th Cir.1996). Initially, the district court agreed with the magistrate judge's recommendation to vacate the conviction and sentence imposed for the violation of § 924(c)(1), concluding that, under Bailey, the record did not establish a factual basis for such a conviction. Upon further examination of the plea colloquy and the PSR, the district court found that there was sufficient information to support Wainuskis's guilty plea and conviction and denied her motion.

Wainuskis appeals. She argues that the factual basis for her plea establishes no more than mere possession and is insufficient to support a conviction of "use." The Government agrees that there is an insufficient factual basis to support her plea to violating the 18 U.S.C. § 924(c)(1) "use" prong under Bailey. It argues, however, that the plea colloquy record sufficiently supports a guilty determination under the unaffected "carry" prong of § 924(c)(1). We agree.

II.

Wainuskis's guilty plea was taken under Rule 11 of the Federal Rules of Criminal Procedure. Her appeal is properly before this Court because we have ruled in Andrade, 83 F.3d 729, 731 (5th Cir.) that although

[a] plea of guilty typically waives all non-jurisdictional defects in the proceedings below ... 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.

Bailey 's clarification of "use" provides Wainuskis with grounds to appeal her conviction and sentence.

We review a district court's denial of a § 2255 motion under two standards. Because "acceptance of a guilty plea is considered a factual finding that there is an adequate basis for the plea," the standard of review of this matter is clear error. United States v. Rivas, 85 F.3d 193, 194 (5th Cir.1996), (citing United States v. Adams, 961 F.2d 505, 509 (5th Cir.1992)). We review the court's conclusions of law de novo. United States v. Faubion, 19 F.3d 226, 228 (5th Cir.1994).

III.

A.

In denying Wainuskis's motion to set aside her conviction and sentence imposed under a Rule 11 plea, the district court examined both the facts available at the time of the plea colloquy and those provided later by the PSR. According to the United States Sentencing Commission, Guidelines Manual, § 6B1.1(c)(Nov.1995), when a dismissal of charges is part of a plea agreement, the court "shall defer its decision to accept or reject" any plea agreement "until there has been opportunity to consider the presentence report." The Government dismissed two counts against Wainuskis in exchange for her guilty plea. The district court relied on both the plea colloquy and PSR to find a factual basis to support her guilty plea. Logically, it must examine the same information to determine if there is a factual basis to set aside her conviction.

This Court has upheld the district court's use of the PSR to find an insufficient factual basis and to reject a plea agreement. United States v. Foy, 28 F.3d 464 (5th Cir.1994). See also United States v. Gulledge, 491 F.2d 679 (5th Cir.1974). ³

Based on the U.S. Sentencing Guidelines and our jurisprudence, the district court was correct in considering all information at its disposal to determine that a factual basis for Wainuskis's guilty plea existed and to deny her motion to set aside her conviction and sentence.

B.

Wainuskis argues that Bailey 's clarification of "use" in § 924(c)(1) requires the setting aside of her sentence and conviction. "Use" under Bailey connotes more than mere possession of a firearm by a person who commits a drug offense. ⁴ The Bailey Court held that the language, context and history of § 924(c)(1) indicates that the Government must show "active employment" of the firearms. ⁵ Reviewing the language of the statute and Congressional intent, the Court noted that nothing indicates that Congress, when it provided the two terms "use" and "carry," intended that they be understood to be redundant. "We assume Congress used two terms because it intended each term to have a particular nonsuperfluous meaning. A firearm can be used without being carried and a firearm can be carried without being used." ⁶

In clarifying "use" the Court provided an illustrative list: "brandishing, displaying, bartering, striking with and ... firing or attempting to fire a firearm." ⁷ More importantly, the Court noted that use cannot extend to encompass the action of an offender who has hidden a gun where he can grab and use it if necessary. ⁸

Wainuskis's plea colloquy established that she was in a back bedroom during the search of her residence. A pistol was found under a mattress within arm's reach at the time that the search was executed. The PSR indicated that Wainuskis was lying on the bed in that bedroom and that the semi-automatic pistol was loaded. Under Bailey, Wainuskis merely possessed the weapon and did not actively employ it at the time of the search. She is correct in stating that under the Bailey clarification of "use" she has not violated § 924(c)(1).

C.

Section 924(c)(1)constitutes one offense, but can be violated in either of two ways: using or carrying. Bailey recognized that the "carry" prong of § 924(c)(1) brings some offenders who would not satisfy the "use" prong within the reach of the statute. ⁹

This Court recently held that, because Bailey did not address the "carry" prong of § 924(c)(1), it had no effect on prior precedent analyzing this language. United States v. Rivas, 85 F.3d 193, 195 (5th Cir.) cert denied, --- U.S. ----, 117 S.Ct. 593, 136 L.Ed.2d 521 (1996); United States v. Tolliver, 116 F.3d 120, 127 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 324, 139 L.Ed.2d 251 (1997); United States v. Muscarello, 106 F.3d 636, 638 (5th Cir.1997), cert. granted, --- U.S. ----, 118 S.Ct. 621, 139 L.Ed.2d 506 (1997). ¹⁰ Our "carry" jurisprudence, when vehicles are not involved, requires a showing that the gun was within arm's reach during the commission of the drug offense. Tolliver, 116 F.3d at 127, (citing United States v. Pineda-Ortuno, 952 F.2d 98, 103 (5th Cir.1992)). We have stated that mere possession of the firearm is insufficient to support a conviction under the "carry" prong. Tolliver, 116 F.3d at 127; United States v. Hall, 110 F.3d 1155, 1161 (5th Cir.1997).

In Pineda-Ortuno, we noted that nothing in the legislative history of § 924(c)(1) suggests that the term "carry" should be construed as having any meaning beyond its literal meaning. That literal meaning we derived from Webster's Third International Dictionary, 353 (1966): "to move while supporting (as in a vehicle or in one's hands or arms): ... sustain as a burden or load and bring along to another place." We also recognized that the "easy reach" element arose from a judicial...