                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit

                         _______________________

                               No. 98-40524
                         _______________________

                        UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,

                                    v.

                          MAURICIO MARTINEZ JR.,
                                                    Defendant-Appellant.

              ______________________________________________

               Appeal from the United States District Court
                    for the Southern District of Texas
                               (M-92-CR-12)
              ______________________________________________
                               June 7, 2000

Before DAVIS, DUHÉ and DENNIS, Circuit Judges.

PER CURIAM:*

       Defendant-Appellant    Mauricio   Martinez,     Jr.   (“Martinez”)

appeals the district court’s order denying his motion to vacate,

set aside, or correct sentence pursuant to 28 U.S.C. § 2255.          We

find no error and affirm.

                                    I.

       In 1991, agents with the Drug Enforcement Administration,

searched Martinez’ residence and adjoining property and arrested

him.       Some of the items seized during the search of the property

were: 357 pounds of marijuana, a .32 caliber H & R Mag revolver, a


       *
      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this opinion should not be published and is not precedent except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.
.380 Colt revolver, a 12 gauge Remington shotgun, weighing scales,

packaging tape, cellophane wrapping, and a currency counterfeiting

device. Agents also found, parked on the property, Martinez’s 1986

Cadillac containing a .9mm Baretta revolver.

      Martinez pleaded guilty to one count of conspiracy to possess

with intent to distribute marijuana and one count of using and

carrying a firearm in relation to a drug offense, a violation of 18

U.S.C. § 924(c).      Martinez was sentenced to 100 months in prison on

the former count and five years in prison on the latter count; the

sentences were imposed consecutively.

      Martinez filed, but then withdrew, a notice of appeal.                More

than one year after the conviction and sentence, Martinez filed the

instant   §    2255   motion.     Martinez   alleged    that   his   plea    was

involuntary because he “did not understand the nature of the

charge” and because he was not guilty under Bailey v. United

States, 516 U.S. 137 (1995).          He also argued that he was denied

effective assistance of counsel.

      The magistrate recommended denying the motion. The magistrate

judge concluded that Martinez was “carrying” a weapon in his

vehicle and home and that his guilty plea to using and carrying a

firearm in relation to a drug offense was thus based on ample

factual support.        The     district   court   adopted   the   report    and

recommendation of the magistrate judge.            A timely notice of appeal

was   filed.      The    district    court    granted    a   certificate     of



                                       2
appealability solely on the Bailey issue.

                                  II.

     Relief under 28 U.S.C. § 2255 is reserved for transgressions

of constitutional rights and for a narrow range of injuries that

could not have been raised on direct appeal and would, if condoned,

result in a complete miscarriage of justice.          United States v.

Acklen, 47 F.3d 739, 741 (5th Cir. 1995).       In reviewing a district

court’s denial of a § 2255 motion, this court examines the factual

findings for clear error and conclusions of law de novo.          United

States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).

     Martinez did not file a direct appeal.            The failure to

challenge his conviction on direct review ordinarily would preclude

Martinez from bringing this collateral action absent a showing of

either: (1) cause and prejudice or (2) actual innocence.         Bousley

v. United States, 523 U.S. 614, 622-23, 118 S.Ct. 1604, 1611, 140

L.Ed.2d 828 (1998). The Government, however, has waived this issue

by failing to raise it in the district court.      See United States v.

Drobny, 955 F.2d 990, 995 (5th Cir. 1992).

     Section 924(c)(1) is violated when a defendant “during and in

relation to any crime of violence or drug trafficking crime ...

uses or carries a firearm ....”        18 U.S.C. § 924(c)(1).   Martinez

argues that his conviction under § 924(c) should be vacated because

he did not “use” or “carry” a firearm for purposes of § 924(c).       We

conclude that the instant case is controlled by our analogous



                                   3
decision in United States v. Ramos-Rodriguez, 136 F.3d 465 (5th

Cir. 1998).

      In Ramos-Rodriguez, the defendant appealed the denial of his

§ 2255 motion challenging the factual basis, under Bailey, for his

guilty plea to one count of using and carrying fourteen guns during

and in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1).    136 F.3d at 466.         The government presented no

evidence indicating the location of the firearms in defendant’s

home at the time of the arrest.             Id. at 467.   Nevertheless, this

Court   held   that   there   was   a       sufficient    factual   basis   for

defendant’s plea of guilty to carrying a firearm in violation of §

924(c)(1).     Id. at 468.    This Court observed that: (1) defendant

made an express admission that he “carried” a firearm during and in

relation to a drug trafficking offense, and (2) defendant admitted

that he carried the firearms “in order to protect and guard the

heroin and cocaine” in his residence and that he carried the

firearms “during and in relation to his possession” of the drugs.

Id.   Accordingly we concluded:

           [i]t cannot be emphasized enough that it is
           the defendant’s admissions during the plea
           colloquy which are pivotal.    Had this case
           been tried to a jury without the defendant’s
           testimony, the mere presence of guns in the
           residence would be insufficient to establish
           “carry” under § 924(c).    See, e.g., United
           States v. Wilson, 77 F.3d 105, 110 (5th Cir.
           1996).   But here, the defendant admitted to
           carrying firearms during and in relation to
           the drug trafficking crimes to which he also
           pleaded guilty.   Nothing within the factual


                                        4
             resume or plea colloquy in this case would
             cause a court to question the defendant’s
             candor or knowledge with respect to the crimes
             to which he pleaded guilty.

Id. at 469

      Martinez made a similar express admission at his rearraignment

hearing that he owned the Cadillac and that he had put the Baretta

firearm in the vehicle. Martinez also admitted that the purpose of

the   Baretta   in   the     Cadillac    was     to   protect   himself   and    the

marijuana during drug trafficking and in case there was some

problem involving the marijuana.                 Moreover, this admission was

repeated in an affidavit filed, after the rearraignment hearing,

with the Probation Department. In this affidavit, Martinez stated:

             ... I, Mauricio Martinez, Jr. conspired with
             Fernando   Hernandez  Aguilera   and   Alfredo
             Vasquez to intentionally possess with intent
             to distribute a quantity of marijuana of
             approximately 470 pounds.       I knew that
             possession of that marijuana was illegal and I
             fully intended to sell that marijuana also
             knowing that was illegal. While and during my
             involvement with this marijuana, I knowingly
             carried or kept a 35 caliber Baretta pistol
             and a Remington 12 gauge shotgun to protect
             myself while I was involved with the 470
             pounds of marijuana at the place where I was
             arrested.

(emphasis added).

                                        III.

      Because of Martinez’ admissions that he “carried” the Baretta

and the Remington shotgun during and in relation to the drug

trafficking     crime   to    which   he       pleaded   guilty,   we   affirm   his



                                           5
conviction and sentence on the firearm count.

     AFFIRMED.




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