     Case: 12-40176      Document: 00512459932         Page: 1    Date Filed: 12/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 12-40176                          December 4, 2013
                                                                              Lyle W. Cayce
                                                                                   Clerk
JUAN JOSE ZUNIGA-HERNANDEZ,

                                                 Petitioner-Appellant
v.

RUDY CHILDRESS, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CV-295


Before KING, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Petitioner Juan Jose Zuniga-Hernandez appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition. He argues that his conviction for
using and carrying firearms and machineguns during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1) is rendered invalid by the
Supreme Court’s decision in Watson v. United States, 552 U.S. 74 (2007). For
the reasons that follow, the district court’s judgment is AFFIRMED.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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           I. FACTUAL AND PROCEDURAL BACKGROUND
      The factual background of Zuniga’s offense is fully discussed in our prior
decision addressing his direct appeal. See United States v. Zuniga, 18 F.3d
1254, 1256–57 (5th Cir. 1994). Of relevance here is that on December 10, 1992,
Zuniga and his father met with undercover agents and a cooperating individual
in Jefferson Parish, Louisiana. There, Zuniga was shown various firearms.
Zuniga inspected the weapons and agreed to accept several as partial payment
for four ounces of heroin given to the cooperating individual earlier that day.
Zuniga helped load the firearms, including two machineguns, into the trunk of
an automobile that Zuniga had been led to believe would take the weapons
back to Houston, Texas. The undercover agents then drove Zuniga and his
father to another location where the agents represented that Zuniga would
receive the remaining payment. Zuniga was then arrested.
      On February 17, 1993, a grand jury returned a four-count superseding
indictment charging Zuniga with conspiracy to distribute heroin, distribution
of heroin, using and carrying firearms and machineguns during and in relation
to a drug trafficking crime, and possession of machineguns. After Zuniga
pleaded guilty to all four counts, the district court sentenced him to concurrent
seventy-eight-month sentences on Counts 1, 2, and 4, and to a consecutive
thirty-year sentence on Count 3.
      On direct appeal, Zuniga challenged his conviction on Count 3 arguing
that “bartering drugs for weapons did not constitute ‘use’ of a weapon within
the context of [§] 924(c)(1).” Zuniga, 18 F.3d at 1257. Relying on the Supreme
Court’s decision in Smith v. United States, 508 U.S. 223 (1993), which held that
using a firearm in a guns-for-drugs trade could constitute “use” under
§ 924(c)(1), we affirmed Zuniga’s sentence. Zuniga, 18 F.3d at 1258–59.
      Zuniga thereafter repeatedly (and unsuccessfully) challenged his
§ 924(c)(1) conviction. In 1996, we affirmed dismissal of his 28 U.S.C. § 2255
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motion, in which he argued that his conviction “resulted from a judicial
enlargement of the statute in violation of the ex post facto clause.” United
States v. Hernandez, 79 F.3d 1144 (5th Cir. 1996) (unpublished table decision)
(per curiam). In 2006, we affirmed the district court’s dismissal of Zuniga’s
§ 2241 petition challenging his § 924(c)(1) conviction based on the Supreme
Court’s decision in Bailey v. United States, 516 U.S. 137, 143 (1995). 1 See
Zuniga-Hernandez v. Childress, 205 F. App’x 236, 237 (5th Cir. 2006)
(unpublished) (per curiam).
       Following the Supreme Court’s decision in Watson, Zuniga again sought
relief, this time in the Eastern District of Louisiana.                  The district court
construed Zuniga’s filing as a successive 28 U.S.C. § 2255 motion and
transferred it to this court for consideration as a motion for authorization to
file a successive § 2255 motion. We denied authorization to file a successive
§ 2255 motion because Zuniga had failed to show that Watson set forth a new
rule of constitutional law and that the Supreme Court made Watson retroactive
to cases on collateral review. In re Zuniga-Hernandez, No. 09-31213 (5th Cir.
Apr. 6, 2010) (per curiam). Subsequently, we again denied Zuniga leave to file
a successive § 2255 motion on the ground that Watson did not set forth a new
rule of constitutional law. In re Zuniga, No. 11-30135 (5th Cir. Apr. 27, 2011)
(per curiam).
       In June 2011, Zuniga filed the present § 2241 petition and once again
argued that under Watson he was serving a prison sentence for a nonexistent
offense. The district court referred the petition to a magistrate judge who
recommended that the petition be dismissed. The magistrate judge reasoned
that Watson was distinguishable because Zuniga also pleaded guilty to


       1 While incarcerated in the Southern District of Illinois, Zuniga filed a separate § 2241
petition. See Hernadez v. Gilkey, 242 F. Supp. 2d 549 (S.D. Ill. 2001). The district court
dismissed the petition for lack of subject matter jurisdiction. Id. at 554–55.
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carrying firearms and “the Supreme Court did not rule [on] whether a
defendant who came into possession of a firearm by trading drugs for it could
be convicted of carrying a firearm in connection with a drug trafficking
offense.” Over objections, the district court adopted the magistrate judge’s
report and recommendation. Zuniga timely appealed.
                        II. STANDARD OF REVIEW
      We review a district court’s dismissal of a § 2241 petition de novo.
Garland v. Roy, 615 F.3d 391, 396 (5th Cir. 2010).
                              III. DISCUSSION
      On appeal, Zuniga contends that his § 2241 petition should be granted
because Watson makes clear that he did not “use” a firearm under § 924(c)(1).
He further argues that the district court accepted his guilty plea only as to his
use of firearms and that the factual record does not support his conviction for
“carrying” firearms. The government responds that Watson only discussed the
“use” aspect of § 924(c)(1) and that a review of the facts underlying Zuniga’s
conviction clearly shows that Zuniga was “carrying” a firearm. We conclude
that the district court correctly dismissed Zuniga’s § 2241 petition.
      A federal prisoner may attack the validity of his conviction in a § 2241
petition if he can meet the requirements of 28 U.S.C. § 2255’s savings clause.
Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (per curiam). To do so, the
prisoner must show that the § 2255 remedy is “inadequate or ineffective to test
the legality of his detention.” Reyes-Requena v. United States, 243 F.3d 893,
901 (5th Cir. 2001) (emphasis omitted) (quoting 28 U.S.C. § 2255). This court
has interpreted § 2255 as setting forth the following three requirements for
proceeding under § 2241:
      (1) the petition raises a claim that is based on a retroactively
      applicable Supreme Court decision; (2) the claim was previously
      foreclosed by circuit law at the time when [it] should have been
      raised in petitioner’s trial, appeal, or first § 2255 motion; and (3)
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       that retroactively applicable decision establishes that the
       petitioner may have been convicted of a nonexistent offense.
Garland, 615 F.3d at 394 (quoting Reyes-Requena, 243 F.3d at 904) (alteration
in original) (internal quotation marks omitted).
       Assuming arguendo that Zuniga’s reliance on Watson satisfies the first
two requirements of § 2255’s savings clause, we focus our analysis on whether
Zuniga’s conviction on Count 3 was based on a “nonexistent offense.” Reyes-
Requena, 243 F.3d at 904. The Supreme Court in Watson held that a defendant
who receives a firearm in exchange for drugs does not “use” the firearm within
the meaning of § 924(c)(1). 552 U.S. at 83. Because he pleaded guilty only to
using firearms in a manner the Watson Court determined could not constitute
“use,” Zuniga maintains that he is entitled to relief.
       The problem with this argument of course is that Zuniga did not plead
guilty merely to “use.”         As it existed at the time of Zuniga’s conviction,
§ 924(c)(1) penalized the use or carrying of a firearm “during and in relation
to” a drug trafficking offense. 2 18 U.S.C. § 924(c)(1) (1994). We have held that
“[w]here a conviction fails under the ‘use’ prong of § 924(c)(1) . . ., it may stand
if the ‘carry’ prong is satisfied.” United States v. Schmalzried, 152 F.3d 354,
356 n.4 (5th Cir. 1998) (per curiam) (citation omitted); see United States v. Still,
102 F.3d 118, 124 (5th Cir. 1996) (“A disjunctive statute may be pleaded
conjunctively and proved disjunctively.”).
       Here, Zuniga pleaded guilty to both using and carrying firearms. Count
3 of the superseding indictment stated that
       On or about the 10th of December, 1992, in the Eastern District of
       Louisiana, the defendants, JUAN JOSE ZUNIGA-HERNANDEZ
       and SALVADOR ZUNIGA-GONZALES, did knowingly use and

       2Congress subsequently amended § 924(c)(1) to provide increased penalties for anyone
who “uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.”
United States v. Cole, 423 F. App’x 452, 460 n.2 (5th Cir. 2011) (unpublished) (per curiam)
(internal quotation marks and citation omitted).
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                                        No. 12-40176
       carry firearms . . . during and in relation to drug trafficking
       crimes . . . in violation of Title 18, United States Code, Section
       924(c)(1).
(emphasis added). 3 The rearraignment transcript likewise shows that the
district court, in reading the superseding indictment, stated that Count 3
charged that Zuniga “did knowingly use and carry firearms.”                        Lastly, the
presentence investigation report (which Zuniga attaches to his petition and to
which he did not object) mirrors the indictment’s language and states that
Zuniga “did knowingly use and carry firearms . . . during and in relation to
drug trafficking crimes, i.e. conspiracy to distribute heroin and
distribution of heroin.”
       Even this court has taken note of the fact that Zuniga’s guilty plea was
not limited merely to “use.” Indeed, we rejected Zuniga’s prior § 2241 petition
for that very reason. In 2004, Zuniga filed a § 2241 petition challenging his
§ 924(c)(1) conviction in light of Bailey, wherein the Supreme Court held that
“use” required evidence sufficient to show “active employment of the firearm by
the defendant.” 516 U.S. at 143 (emphasis in original). We affirmed the
district court’s dismissal of the § 2241 petition on the ground that Zuniga
“pleaded guilty to using and carrying firearms and machineguns during and
in relation to a drug trafficking crime.” Zuniga-Hernandez, 205 F. App’x at
237 (emphasis added).            Because “Bailey did nothing to affect [Zuniga’s]
conviction for carrying firearms and machineguns,” Zuniga could not show that
he was convicted of a nonexistent offense. Id. (emphasis added).
       Although Zuniga now relies on Watson, instead of Bailey, his argument
remains the same—that the Supreme Court has interpreted § 924(c)(1) in a



       3 Although the superseding indictment was not included in the parties’ briefs, we take
judicial notice of it. Fed. R. Evid. 201; see United States v. Elashyi, 554 F.3d 480, 501 n.9 (5th
Cir. 2008).
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                                    No. 12-40176
manner inconsistent with his conviction under the “use” prong. As before,
because Zuniga pleaded guilty to both using and carrying firearms, the fact
that his conviction under one prong may be invalid does not entitle him to
relief. See Still, 102 F.3d at 124–25.
      Moreover, we reject Zuniga’s argument that the facts of his case are
insufficient to support his conviction under § 924(c)(1)’s “carry” prong. “It is
clear that our jurisprudence in a non-vehicle context requires both that the
weapon be moved in some fashion and that it be within arm’s reach (readily
accessible) for a violation of the ‘carry’ prong of § 924(c)(1).” United States v.
Wainuskis, 138 F.3d 183, 187 (5th Cir. 1998). Further, the weapon must be
“moved or transported in some manner, or borne on one’s person, during and
in relation to the commission of the drug offense.” Schmalzried, 152 F.3d at
356–57 (emphasis added). The Supreme Court has stated that “[t]he phrase
‘in relation to’ is expansive,” and interpreted it to mean that “the firearm must
have some purpose or effect with respect to the drug trafficking crime; its
presence or involvement cannot be the result of accident or coincidence.”
Smith, 508 U.S. at 238; see also Muscarello v. United States, 524 U.S. 125, 137
(1998) (“Congress added these words in part to prevent prosecution where guns
‘played’ no part in the crime.”).
      Here, in the course of negotiating a heroin sale, Zuniga inspected several
firearms offered by the undercover officers. He agreed to accept some of them
in exchange for a partial credit against the amount owed for the heroin. He
then helped pack the firearms into bags. Finally, he helped load the weapons
into a vehicle he believed would take the guns back to Houston. Under these
facts, we have little difficulty in finding that the evidence supporting Zuniga’s




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                                        No. 12-40176
guilty plea under § 924(c)(1)’s “carry” prong is sufficient. 4 See Wainuskis, 138
F.3d at 187–88; see also Balderas v. Young, 202 F. App’x 745, 747 (5th Cir.
2006) (unpublished) (per curiam) (evidence showing that defendant delivered
murder weapon to coconspirator to shoot intended victim in murder-for-hire
scheme was sufficient to support conviction under “carry” prong).
                                   IV. CONCLUSION
       For the aforementioned reasons, the district court’s judgment is
AFFIRMED.




       4 We recognize that several courts have interpreted Watson to apply to both the “use”
and “carry” prongs in the context of a drugs-for-guns trade. See United States v. Carillo-
Ayala, 713 F.3d 82, 96 n.12 (11th Cir. 2013) (remarking in dicta that under Watson “a
defendant who receives a firearm in exchange for drugs does not use or carry a firearm during
and ‘in relation to’ a drug trafficking crime.” (emphasis in original)); United States v.
Campbell, 436 F. App’x 518, 527 (6th Cir. 2011) (unpublished) (interpreting Watson to mean
that “a defendant cannot be convicted under the ‘uses or carries’ prong of § 924(c) simply by
engaging in a barter transaction in which the defendant exchanges drugs for a firearm”);
United States v. Woods, No. 5:03cr30054-1, 2010 WL 4878447, at *2 (W.D. Va. Nov. 24, 2010)
(unpublished). These decisions are neither binding on us nor appear precedential within
their own circuits. They also are not representative of many other decisions that have, in our
view, correctly recognized Watson’s narrow scope. See, e.g., Fuller v. United States, 849 F.
Supp. 2d 635, 641–43 (W.D. Va. 2012) (Watson only “eliminated one narrow form of ‘use’
under § 924(c)—use of a firearm as an item of barter in exchange for drugs”); Bogardus v.
United States, Nos. CV 110-115, CR 105-014, 2012 WL 292870, at *8 (S.D. Ga. Jan. 4, 2012)
(unpublished) (“[T]he holding [in] Watson has no bearing on the verb ‘carrying.’”), report and
recommendation adopted by 2012 WL 289874 (S.D. Ga. Jan. 31, 2012); Winkelman v. Holt,
No. 4:CV-09-0300, 2009 WL 1314864, at *8–9 (M.D. Pa. May 8, 2009) (unpublished)
(dismissing habeas petition because although Watson “held that a person trading his drugs
for firearms did not ‘use’ a firearm . . . [Petitioner] was charged and convicted of not only
using a firearm but with carrying and possessing firearms”). In any event, our ruling is
limited to finding that on the facts of this case the district court correctly dismissed Zuniga’s
§ 2241 petition. See Schmalzried, 152 F.3d at 357–58 (remanding for entry of a new plea
where “record’s silence render[ed] a critical element of a ‘carry’ offense under § 924(c)(1)
unsatisfied”). We express no opinion as to whether a defendant engaged in a drugs-for-guns
transaction would fall under § 924(c)(1)’s “carry” prong where he did not inspect, handle, and
pack the firearms himself. See Bailey, 516 U.S. at 146 (“Under the interpretation we
enunciate today, a firearm can be used without being carried, e.g., when an offender has a
gun on display during a transaction, or barters with a firearm without handling it . . . .”
(emphasis added)).
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