     Case: 11-50776       Document: 00512169467         Page: 1     Date Filed: 03/08/2013




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

                                                                            FILED
                                                                           March 8, 2013
                                     No. 11-50776
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BERNEL RUIZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:01-CR-138-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Bernel Ruiz, federal prisoner # 63023-080, moves for leave to proceed in
forma pauperis (IFP) on appeal from the dismissal of his petition for relief under
the All Writs Act, 28 U.S.C. § 1651(a). On appeal, a motion to proceed IFP is
construed as a challenge to the district court’s certification that the appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28
U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). This court’s inquiry is limited to



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-50776

whether the appeal involves legal points that are not frivolous. Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983).
      In 2002, Ruiz pleaded guilty, pursuant to a written plea agreement, to
possession with the intent to distribute more than 50 grams of crack cocaine in
violation of 21 U.S.C. § 841(a), and of using, carrying, or possessing a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). The
firearm charge arose when arresting officers discovered a firearm in the car Ruiz
was driving during a drug transaction, located between the driver’s seat and the
center console. Ruiz moved to withdraw his plea prior to sentencing, but his
motion was denied following a hearing. Ruiz claimed he did not know that the
gun was in the vehicle, a contention that the district court rejected.
      The district court sentenced Ruiz to 204 months of imprisonment. Ruiz
filed a direct appeal challenging his guilty-plea conviction on the drug-trafficking
charge and sentence, among other things, on the grounds that the district court
did not inform him, as required by Federal Rule of Criminal Procedure 11(c)(1),
of the drug quantity involved. Finding no error, this Court affirmed. United
States v. Ruiz, 64 F. App’x 41 (5th Cir. 2003).
      In 2005, Ruiz filed a 28 U.S.C. § 2255 motion asserting numerous grounds
for relief from his conviction, which the district court denied on the merits. In
2011, Ruiz filed the present § 1651(a) motion, seeking to invalidate his guilty
plea on the firearm count under § 924(c). He asserts that the sentencing court
erred in failing to admonish him at rearraignment that the Government was
required to prove active employment of the firearm, that he never actively
employed the firearm in his case, and that he relied on his counsel’s bad advice
in pleading guilty to the firearm charge.
      The district court denied Ruiz’ petition for extraordinary writ under the
All Writs Act, concluding that Ruiz had an alternative remedy under 28 U.S.C.




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§ 2255 that precluded his All Writs Act petition.1 See, e.g., Carlisle v. United
States, 517 U.S. 416, 429 (1996); Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.
2000). The district court denied Ruiz leave to proceed IFP, and Ruiz appeals
that decision.
       Ruiz contends that the denial of his § 1651(a) petition was error. He urges
that such a petition is the only remedy available to him to invalidate his unjust
18 U.S.C. § 924(c) conviction, presumably because any alternative remedy he
would have would have been untimely or otherwise procedurally precluded.
Specifically, Ruiz argues that he may seek a writ of audita querela and seek
general “extraordinary relief” through the All Writs Act despite the general
availability of § 2255 relief for federal prisoners. See, e.g., United States v.
Morgan, 346 U.S. 502, 509-13 (1954) (holding that, despite § 2255, the writ of
coram nobis is available to federal defendants after they are released from
custody to correct fundamentally unjust federal sentences); United States v.
Miller, 599 F.3d 484, 487-88 (5th Cir. 2010) (stating that “the writ of audita
querela might . . . survive in criminal adjudications, if there is a gap for it to fill
. . . [if] there is a legal objection to a judgment which has arisen subsequent to
that judgment”) (emphasis and citations omitted).
       We need not reach Ruiz’s contention that relief under the All Writs Act is
available to him, because he has not presented grounds for relief on the merits.
Ruiz argues, essentially, that his guilty plea under § 924(c)(1) is invalid because
there was no factual basis for his having actively employed the firearm during
the drug-trafficking offense. See FED. R. CRIM. P. 11(b)(3) (requiring a factual
basis for a guilty plea). In support, Ruiz cites United States v. Carter, 117 F.3d
262 (5th Cir. 1997), in which this Court held that a defendant’s guilty plea under

       1
         In the alternative, the district court liberally construed the petition as a motion for
new trial under Federal Rule of Criminal Procedure 33, a motion for modification of sentence
under Federal Rule of Criminal Procedure 35, and a motion to vacate a federal sentence under
§ 2255, and the court denied relief on various procedural grounds. On appeal, Ruiz maintains
that he seeks relief pursuant to the All Writs Act only.

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§ 942(c)(1) was invalid where the defendant did not actually use or display the
firearm during the drug transaction, but where the firearm had merely been
resting on a vehicle’s console. Id. at 264-65 (citing Bailey v. United States, 516
U.S. 137, 143 (1995) (establishing rule)). However, Bailey—and by extension,
its application in Carter—was legislatively overruled in 1998 when Congress
amended § 924(c)(1) to criminalize not only the use of a firearm, but also the
possession of a firearm in furtherance of drug-trafficking crimes. Abbott v.
United States, 131 S. Ct. 18, 25 (2010) (“The 1998 alteration [of § 924] responded
primarily to our decision in Bailey . . . [which] held [that] § 924(c)(1) did not
reach ‘mere possession’ of the weapon. Congress legislated a different result; in
the 1998 revision, colloquially known as the Bailey Fix Act, the Legislature
brought possession within the statute’s compass.”) (citations and other quotation
marks omitted); see 18 U.S.C. § 924(c)(1) (providing for punishment of “any
person who, during and in relation to any . . . drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such crime, possesses a
firearm”).
      Ruiz pleaded guilty in 2002, after § 924(c)(1) was amended to prohibit the
possession of a firearm during drug-trafficking offenses. The abstract of Ruiz’
judgment reflects that he pleaded guilty to “use, carry or possession [of] a
firearm in furtherance of a drug trafficking crime” on or about July 5, 2000. The
Pre-Sentence Report recites that an arresting officer “saw the butt of a gun
protruding between the driver’s seat and the console.” Ruiz does not deny that
the gun was in his possession, and he does not renew his contention that he did
not know the gun was in the car; he contests only the legal significance of the
gun’s location under Carter. Ruiz’s reliance on Carter is misplaced because
possession of a firearm in furtherance of the drug-trafficking offense is now a
sufficient factual basis for a conviction under § 924(c)(1).




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     Given the foregoing, Ruiz’s sole substantive contention in this appeal lacks
merit. Accordingly, his IFP motion is DENIED, and his appeal DISMISSED.
See Howard, 707 F.2d at 220; Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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