
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1856                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JULIO FIGUEROA-ROMERO,                                      Appellant.                                _____________________        No. 96-1254                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  ALFREDO CESPEDES,                                      Appellant.                                 ____________________        No. 96-1255                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JOSE A. RIVERO-CABANAS,                                      Appellant.                                 ____________________                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Julio Figueroa-Romero on brief pro se.            _____________________            Antonio Bauza  Torres, by appointment of  the Court,  on brief for            _____________________        appellant Alfredo Cespedes.            Jose A. Rivero-Cabanas on brief pro se.            ______________________            Philip  Urofsky,  Attorney,  Narcotic  &  Dangerous  Drug Section,            _______________        Department  of  Justice, John  C.  Keeney,  Acting Assistant  Attorney                                 ________________        General,  Theresa M.B.  Van Vliet,  Chief, and  Guillermo  Gil, United                  _______________________               ______________        States Attorney, on brief for appellee.                                 ____________________                                     May 21, 1997                                 ____________________                      Per Curiam.  Alfredo Cespedes, Jose Antonio Rivero-                      __________            Cabanas and Julio Figueroa-Romero (collectively "defendants")            pleaded  guilty to  drug  trafficking and  firearm counts  in            Puerto Rico Federal District Court.  Each appeals his firearm            conviction or  sentence under 18 U.S.C.   924(c)(1), pursuant            to  the Supreme  Court's  more recent  opinion  in Bailey  v.                                                               ______            United States, ___ U.S. ___, 116 S. Ct. 501 (1995).  Cespedes            _____________            also appeals the court's  calculation of his criminal history            category.  We affirm.                                    I.  Background                                        __________                      The  indictments and subsequent pleas were based on            the following facts.   Beginning in 1993,  the defendants and            several  others   entered  into   a  conspiracy   to  smuggle            controlled substances  into Puerto  Rico.  They  made several            attempts to import  illegal substances; some succeeded,  some            did  not.  Pre-sentence reports  indicate that Rivero was the            overall organizer  and manager  of the conspiracy.   Cespedes            managed  distribution  in Miami  while  Figueroa managed  the            operations based in Puerto Rico.                      The defendants'  guilty pleas relate to   incidents            that occurred in November  of 1993.  The first  incident took            place in  mid-November.  Cespedes left Miami  for Puerto Rico            in  order to assist Rivero in taking delivery of 3,000 pounds            of marijuana.  On the night of the planned delivery, Figueroa            distributed guns to the other conspirators.  The group waited                                         -3-            at the  mouth of the  Humacoa river  for two  nights but  the            delivery  failed   to   materialize.     They   tried   again            approximately one week later;   however, once again the drugs            eluded their grasp.                      Rivero  next  made  arrangements  with  a Colombian            supplier  to deliver cocaine by  air drop.   The group, again            armed, succeeded in retrieving  approximately twenty bales of            cocaine  from the ocean  before they were  intercepted by law            enforcement officials.                      In April 1994, the  defendants were indicted on ten            drug  trafficking and firearm  counts.  One  year later, each            defendant  pleaded  guilty  to  one count  of  conspiracy  to            possess  with   intent  to  distribute  cocaine,   21  U.S.C.               841(a)(1), 846, and  one count of aiding  and abetting the            use  and carrying of firearms during the commission of a drug            trafficking crime, 18 U.S.C.   924(c)(1).                                   II.  Discussion                                        __________                      18 U.S.C.   924(c)(1) imposes a mandatory five-year            prison term on any  person who "during and in relation to any            crime of  violence or  drug trafficking crime  . . . uses  or            carries a firearm."  After  the defendants were sentenced but            prior to this appeal,  the Supreme Court held in  Bailey that                                                              ______            the  word  "use" was  to be  given  its "ordinary  or natural            meaning."  116 S. Ct.  at 506.  Accordingly, to  be convicted            of  "use" under the statute,  a defendant must have "actively                                         -4-            employed the firearm during and in  relation to the predicate            crime."   Id. at 509.   The government concedes  that none of                      ___            the defendants' actions rise to this level but maintains that            the   record  contains   sufficient  facts  to   support  the            convictions under the "carry" prong.                      We have said that  the Bailey Court recognized that                                             ______            the "carry" prong  of   924(c) would take on added importance            in  light of the new limitations on  "use."  United States v.                                                         _____________            Ramirez-Ferrer, 82 F.3d 1149,  1152 (1st Cir.), cert. denied,            ______________                                  ____________            117  S.  Ct.  405 (1996).    Recently,  in  United States  v.                                                        _____________            Cleveland,  106  F.3d 1056  (1st  Cir.  1997), we  recognized            _________            "carry"  as applying both to transport  in a vehicle and on a            defendant's person.   Id. at 1067.  We declined to limit this                                  ___            reading by  adopting a requirement of  accessibility, finding            instead that "the distinguishing characteristic of "carry" is            not the  instant availability  of the  item carried, but  the            fact that the item  is being moved from one place  to another            by  the carrier. . . .  Id. at 1068.  This movement, however,                                    ___            must  have  some nexus  to the  predicate offense.   Ramirez-                                                                 ________            Ferrer, 82 F.3d at  1152.  Because the firearms  charges were            ______            for aiding and  abetting, the convictions will  stand "if one            defendant  is  found to  have to  have  carried a  firearm in            violation of    924(c)(1) and  the others  to have  aided and            abetted."  Id.  We examine each defendant's case in turn.                       ___                                         -5-                      A. Figueroa                         ________                      Figueroa pleaded guilty to aiding and  abetting the            use or  carrying of  firearms in  connection with  the failed            marijuana delivery and  the cocaine air  drop.  He  maintains            that  he  himself  did not  use  or  carry  any firearms  and            objected to  the section  of his Pre-Sentence  Report ("PSR")            stating that he possessed and distributed firearms to the co-            conspirators.   When  Figueroa voiced  this objection  at his            sentencing, the court ordered the government to make an offer            of  proof  in  support   of  its  allegations  that  Figueroa            "facilitated"  and   "distributed"   firearms  to   the   co-            conspirators.   The government  informed the court  that five            co-conspirators  were ready  to  testify  that they  received            weapons  from Figueroa  during  the  unsuccessful attempt  to            import  marijuana  and during  the  cocaine  drop.   Figueroa            responded  that  he  would  have  impeached these  witnesses'            testimony by his own testimony and that of Rivera.  The court            found  by  a  preponderance  of the  evidence  that  Figueroa            facilitated   and  distributed   the  weapons   to   the  co-            conspirators on the two relevant occasions.                      This finding is enough  to support  carrying within            the  meaning of   924(c)(1) and under Cleveland.  In order to                                                  _________            bring   and  distribute  firearms   to  his  co-conspirators,            Figueroa would have had to transport them either in a vehicle            or   on  his  person.    Either  is  enough  to  fulfill  the                                         -6-            requirements  of carrying  as in  this context,  the required            nexus to the predicate offense is unquestionably present.                      Figueroa,   however,  did   not  plead   guilty  to            "carrying",  but to  aiding and abetting  carrying, requiring            that  at least  one other  defendant carry  a firearm.   This            requirement,  however,  is  easily   met.    In  his  written            objections  to the  PSR,  Figueroa acknowledged  that he  had            "pleaded  guilty  to   participating  in   an  illegal   drug            distribution scheme  knowing (as  an aider and  abettor) that            another  co-conspirator(s) carried firearm(s) during the said            _______            distribution.  . . ."  (emphasis in original).1  The evidence            is sufficient to support Figueroa's guilty plea to the aiding            and abetting of carrying under   924(c)(1).                      B. Rivero                         ______                      Rivero, like  the other defendants,  pleaded guilty            to  aiding  and abetting  the  use or  carrying  of firearms.            Because we  have found that Figueroa  carried firearms within            the meaning  of    924(c)(1),  Rivero's  admitted  status  as            Figueroa's co-conspirator  in the drug trafficking offense is            sufficient  to uphold his  guilty plea to  the firearms count            under Ramirez-Ferrer.  Moreover, Rivero did not object to the                  ______________            section  in  his  PSR  that  stated  that  Figueroa  brought,                                            ____________________            1.  We also note that all three defendants at their change of            plea  hearings agreed  with the  government's version  of the            facts which stated that during the commission of the two drug            trafficking offenses "the co-conspirators carried firearms."                                         -7-            distributed  and  hence,  carried  the  firearms  during  the            commission of a drug trafficking offense.                      Rivero also maintains that  he should be allowed to            withdraw his guilty plea because the court gave an  imprecise            definition  of "aiding  and  abetting" when  it accepted  his            plea.   During  the  Rule 11  hearing the  following colloquy            ensued:                      THE  COURT:   The  charge  is  aiding and                      abetting, which means if there is a group                      of  persons that  are  in common  consort                      carrying out an activity  and one or more                      has weapons while the illegal activity is                      going on, if you  are aiding and abetting                      in the importation of cocaine and persons                      are using weapons and you  are charged as                      an aider  or abettor in the possession of                      those firearms.    You may  not have  had                      them  personally  on your  person  but if                      there were others that had them, then you                      could be charged as  an aider and abettor                      and that is what  you are charged with in                      Count 6.                      THE DEFENDANT:  Yes, sir.                      THE  COURT:   And  that is  what you  are                      pleading guilty to.                      THE DEFENDANT:  Yes, sir.            We  fail to  see,  and Rivero  has  not explained,  what  was            lacking in this explanation.  Based on Figueroa's carrying of            firearms we find that the  evidence is sufficient to  support            Rivero's aiding and abetting the carrying of firearms.2                                            ____________________            2.  Rivero also complains that the court  erred by using pre-            Bailey  law  in  its  explanation  of  the  firearms  charge,            ______            rendering the guilty  plea non-knowing and voluntary.   As we            explained,  ante, however,  Rivero accepted  the government's                        ____                                         -8-                      C. Cespedes                         ________                      Unlike the other two defendants, Cespedes  does not            seek  to overturn  his guilty  plea to  the firearms  charge.            Instead,  he  contests   the  imposition  of   the  five-year            consecutive sentence required under    924(c), arguing for  a            concurrent  sentence under  U.S.S.G.   5G1.2(c).3   Although,            strictly speaking,  appeals to "correct a  sentence" are more            properly  pursued  via  a  habeas petition  under  28  U.S.C.              2255,  Cespedes' arguments  touch  on the  validity of  the            conviction, making review appropriate in this forum.                       Cespedes contends "the elements of carrying or use            were not  present in relation  to the Count  One crime."   We            dispose of  this assertion  in  short order.   Cespedes'  PSR            stated that during the earlier unsuccessful attempt to import            marijuana  "Mr. Figueroa  distributed several  firearms among            the co-conspirators" and that Cespedes, among  others, "while            in possession of firearms, waited at the mouth of the Humacao            River  . . . ."  Cespedes did  not object to  this section of                                            ____________________            contention  that  Figueroa  facilitated and  distributed  the            firearms,  negating  any  possible  claim  of   ignorance  or            involuntariness.            3.  Section 5G1.2(c) states:                      If  the  sentence  imposed on  the  count                      carrying the highest statutory maximum is                      adequate to achieve the total punishment,                      then  the sentences  on all  counts shall                      run  concurrently,  except to  the extent                      otherwise required by law.                                         -9-            the  PSR.  Given that  we have already  found that Figueroa's            behavior meets  the standard for carrying  within the meaning            of    924(c)(1),  we  see  no  reason  to  reverse  Cespedes'            sentence on this basis.                      Cespedes  also  claims  that  the  court  erred  in            including  in his  criminal history  category computation  an            earlier  withheld  adjudication  ending  in a  plea  of  nolo            contendere.   There are two prongs to  his attack.  First, he            argues that a plea of nolo contendere can not be equated with            a guilty plea for the purposes  of the sentencing guidelines.            We addressed this issue  in United States v. Pierce,  60 F.3d                                        _____________    ______            886  (1st Cir. 1995), cert.  denied, 116 S.  Ct. 2580 (1996),                                  _____________            where  we concluded  that an  event which  establishes guilt,            whether  "by  guilty   plea,  trial,  or  by   plea  of  nolo            contendere," is includable in a  defendant's criminal history            computation.  Id. at 892.                          ___                      Cespedes' second argument is that the court  should            have  allowed  him to  attack  collaterally  this same  state            charge because he was appointed counsel only at the "instant"            he made the nolo contendere  plea.  For support he relies  on            Custis v. United States, 511 U.S. 485 (1994), which held that            ______    _____________            a  collateral attack on a prior state conviction at a federal            sentencing proceeding  can be had  only if the  defendant can            claim  total absence  of  counsel in  violation of  the Sixth            Amendment.    Id. at  496.    Such  was  not the  case  here.                          ___                                         -10-            Cespedes acknowledges that  he had counsel  when he gave  the            plea of nolo contendere.  That it was, perhaps, not effective            counsel because of the timing, is an argument to be made in a            habeas petition pursuant to 28 U.S.C.   2255.                      The convictions and sentences of the defendants are                      ___________________________________________________            affirmed.            ________                                         -11-
