

                    [NOT FOR PUBLICATION]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  &amp;  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-
