US v. Viera, Criminal No. 1:CR-91-164-01. Civil Action No. 1:CV-96-392.

• Decision Date: 02 July 1996
• Docket Number: Criminal No. 1:CR-91-164-01. Civil Action No. 1:CV-96-392.
• Parties: UNITED STATES of America, Plaintiff, v. Jose L. VIERA, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

931 F. Supp. 1224

UNITED STATES of America, Plaintiff, v. Jose L. VIERA, Defendant.

Criminal No. 1:CR-91-164-01. Civil Action No. 1:CV-96-392.

United States District Court, M.D. Pennsylvania.

July 2, 1996.

L. Rex Bickley, Harrisburg, PA, for defendant Jose L. Viera.

Jose L. Viera, White Deer, PA, pro se.

Timothy J. O'Connell, Harrisburg, PA, for defendant Vernell Strawn.

Vernell Strawn, Harrisburg, PA, pro se.

Theodore B. Smith, III, U.S. Attorney's Office, Harrisburg, PA, for U.S.

MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

The defendant, Jose Luis Viera, has filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Pursuant to a plea agreement, the defendant had pled guilty to a violation of 18 U.S.C. § 924(c)(1), which makes it unlawful to carry or use a firearm during and in relation to a drug trafficking offense. The motion argues that the conviction is invalid under the Supreme Court's recent decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).

In opposition, the government contends that the conviction can be sustained under Bailey and that, alternatively, if the defendant succeeds in vacating his conviction, the government should be allowed to reinstate the two counts that were dismissed as part of the plea bargain.

II. Background.

On October 29, 1991, the defendant and a co-defendant were named in a six-count superseding indictment. The defendant was charged: (1) in Count I with using and carrying a firearm on May 8, 1990, or aiding and abetting its use, during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); (2) in Count II with the unlawful acquisition of federal food stamps on May 8, 1990, in return for cocaine in violation of 7 U.S.C. § 2024(b); and (3) in Count III with using and carrying a firearm on May 16, 1990, during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1).

On December 8, 1992, the defendant executed a plea agreement in which he agreed to plead guilty to Count III. (Plea agreement, ¶ 1). In pertinent part, this paragraph of the agreement also advised the defendant that:

The mandatory penalty for the offense is imprisonment for a period of five (5) years consecutive to any other sentence the defendant is serving....

(Plea agreement, ¶ 1).

Paragraph one also provided that the defendant would admit when he entered his guilty plea that he was in fact guilty of Count III and that after sentencing the government would dismiss the other counts against him.

The agreement also provided that the defendant could not withdraw his guilty plea if he was dissatisfied with the court's sentence or if it declined to follow any of the parties' recommendations as to sentencing. (Id. at ¶ 8). The agreement was silent as to whether the defendant could appeal, or attack collaterally, his conviction or sentence. Additionally, the agreement contained a merger clause, specifying that there were no other written or oral agreements and that "no other promises or inducements" had been made to the defendant. (Id., ¶ 11) (brackets added).

The defendant pled guilty on the same day he signed the agreement. During his guilty-plea colloquy, as the basis for the plea and conviction, he admitted that he kept a 9-millimeter, semi-automatic gun in his bedroom where he also kept cocaine intended for sale. This admission was also made during an interview conducted on May 16, 1990, while local police were searching the defendant's apartment pursuant to a search warrant. According to the police report, the defendant also admitted that "someone had traded him the semi-automatic pistol for cocaine." (government's opposition brief, appendix B).

On March 5, 1993, the defendant was sentenced to the mandatory term of five years imprisonment to run consecutively to a state term of imprisonment he was then serving for drug offenses. Pursuant to the agreement, the other two counts were dismissed on motion of the government. The defendant took no direct appeal, and his 2255 motion, filed March 6, 1996, representing his first attempt at collateral relief, was prompted by Bailey.

III. Discussion.

There is no doubt that the defendant's section 924(c)(1) conviction was valid under Third Circuit law as it existed at the time of the plea bargain and before Bailey. In United States v. Price, 76 F.3d 526, 528 (3d Cir.1996), the Third Circuit noted that pre-Bailey law only required that the weapon be available for use in a drug transaction. In contrast, Bailey requires active employment of the weapon. Thus, the factual basis of Viera's plea is no longer adequate to sustain the conviction because it only establishes that the gun was present in a room where drugs were kept.

The government attempts to defeat the motion by pointing to the defendant's purported admission that someone had traded him the gun for cocaine. Relying on the Supreme Court's statement in Bailey that bartering drugs for a weapon would satisfy the active-employment requirement, ___ U.S. at ___, 116 S.Ct. at 508, 133 L.Ed.2d at 483-84, the government argues that this admission sustains the conviction and that, if necessary, a hearing can be held where the factual basis of the admission can be established.

The difficulty with this argument is that count III charges the defendant with using and carrying a firearm on May 16, 1990, and the government does not offer to prove that the trade for the gun happened on that date. "Although an indictment need not, as a general rule, establish a date with absolute certainty, when the date is a critical element of the offense a variance between the allegata and probata is fatal." United States v. Frankenberry, 696 F.2d 239, 245 (3d Cir.1982). The date is a critical element here because we do not know whether the indictment was obtained by proving that the weapon was present with the drugs or by proving the entirely separate bartering transaction. We strongly suspect the former since the date is the same as the date of the search, and the government would have believed at that time that proof of the proximity of a weapon to drugs would be adequate for the indictment. We therefore reject the government's attempt to rely on the alleged barter of the weapon.

Thus, we must grant the defendant's motion to vacate the section 924(c)(1) conviction. In light of Bailey, the defendant pled guilty to something that was not a crime, and he is entitled to the retroactive benefit of that case. See United States v. Gaither, 926 F.Supp. 50 (M.D.Pa.1996) (Rambo, C.J.) (citing Warner v. United States, 926 F.Supp. 1387 (E.D.Ark.1996)).

The government has also argued that, if we grant the defendant's motion to vacate the conviction, the motion constitutes a breach of the plea agreement, entitling it to reinstate counts I and II, the counts it agreed to dismiss in return for the defendant's plea of guilty to count III. The government insists that if the defendant is no longer willing to go along with the bargain, it should no longer be bound by it either, and the parties should be returned to the position they were in before the agreement was made.

The government's view that the defendant's conduct is a breach of the agreement entitling it to rescission is reasonable. Generally, plea agreements are treated like contracts and are governed by contract principles. See United States v. Hayes, 946 F.2d 230, 233 n. 3 (3d Cir.1991). However, some courts have rejected the government's position, ruling instead that a defendant's successful collateral attack on a conviction based on a subsequent change in the law is not a breach of the plea agreement. See Gaither, supra; United States v. Crespo, No. 3:CR-93-277 (M.D.Pa. April 17, 1996) (Conaboy, J.); DiCesare v. United States, 646 F.Supp. 544 (C.D.Cal.1986); United States v. Youngworth, 1989 WL 129262 (W.D.N.C.1989). The latter three cases based their ruling on contract analysis, reasoning that the defendants did all they agreed to do by pleading guilty and that a collateral attack on the conviction was a separate matter (although we note that the court in Crespo also held that the defendant, while not breaching the agreement, had nullified it). Gaither simply decided that there was no breach because it was "entirely proper" to attack a conviction that was based on conduct that was not a crime. Gaither, 926 F.Supp. at 51 (citing Warner, supra).

We cannot subscribe to this approach. Plea agreements should be interpreted in light of the parties' reasonable expectations. See United States v. Muzika, 986 F.2d 1050 (7th Cir.1993). Additionally, the Third Circuit has stated, although in regard to the government's obligations under a plea bargain rather than the defendant's, that the court is "not limited to the express language of the agreement" in interpreting it. United States v. Bogusz, 43 F.3d 82, 94 (3d Cir.1994). In Bogusz, the court cited with approval language from Moore v. Foti, 546 F.2d 67, 68 (5th Cir.1977), where the Fifth Circuit stated that a defendant's "successful challenge to his plea bargained sentence is a tacit repudiation of the bargain." 43 F.3d at 94.¹

In light of these standards, the defendant has breached the plea bargain because an implicit part of the agreement, indeed its very heart, was that the defendant would remain convicted and serve the sentence imposed. The government undoubtedly entered into the agreement with this understanding, and so did the defendant. It is true that the agreement did not explicitly provide that the defendant would serve the sentence imposed, but that condition can easily be inferred from the paragraphs of the agreement advising the defendant of the mandatory five-year sentence (which also mentioned that it would be consecutive to any other sentences imposed) and that the defendant could not withdraw his guilty plea if he was dissatisfied with his sentence.

Thus, the defendant's...