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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[NOT FOR PUBLICATION]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

appellant Alfredo Cespedes.


Jose A. Rivero-Cabanas on brief pro se.
______________________
Philip Urofsky,
_______________
Department
General,

of

Attorney,

Narcotic

Justice, John C. Keeney,


________________

Theresa M.B. Van Vliet,


_______________________

&

Dangerous

Drug Secti

Acting Assistant

Chief, and

States Attorney, on brief for appellee.

____________________

May 21, 1997


____________________

Attor

Guillermo Gil, Uni


______________

Per Curiam.
__________

Alfredo Cespedes, Jose Antonio Rivero-

Cabanas and Julio Figueroa-Romero (collectively "defendants")

pleaded

guilty to

drug

trafficking and

Puerto Rico Federal District Court.

conviction or

to

the Supreme

more recent

in

Each appeals his firearm

sentence under 18 U.S.C.

Court's

firearm counts

924(c)(1), pursuant

opinion

in Bailey
______

v.

United States, ___ U.S. ___, 116 S. Ct. 501 (1995).


_____________

also appeals the court's

category.

calculation of his criminal history

We affirm.

I.

The

others

Beginning in 1993,

entered

controlled substances

attempts to import

did

not.

into

into Puerto

the defendants and

conspiracy

Rico.

They

to

smuggle

made several

illegal substances; some succeeded,

Pre-sentence reports

overall organizer

managed

Background
__________

indictments and subsequent pleas were based on

the following facts.

several

Cespedes

and manager

distribution

in Miami

operations based in Puerto Rico.

some

indicate that Rivero was the

of the conspiracy.

while

Cespedes

Figueroa managed

the

The defendants'

that occurred in November

place in

in

mid-November.

guilty pleas relate to

of 1993.

The first

Cespedes left Miami

incidents

incident took

for Puerto Rico

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.

-3-

The group waited

at the

mouth of the

delivery

failed

Humacoa river

to

for two

materialize.

approximately one week later;

nights but

They

tried

the

again

however, once again the drugs

eluded their grasp.

Rivero

supplier

next

made

arrangements

to deliver cocaine by

armed, succeeded in retrieving

cocaine

from the ocean

with

air drop.

a Colombian

The group, again

approximately twenty bales of

before they were

intercepted by law

enforcement officials.

In April 1994, the

drug

defendants were indicted on ten

trafficking and firearm

defendant

possess

pleaded

with

guilty

intent

to

to

counts.

One

one count

distribute

year later, each

of

conspiracy

cocaine,

21

to

U.S.C.

841(a)(1), 846, and

use

one count of aiding

and carrying of firearms during the commission of a drug

trafficking crime, 18 U.S.C.

II.

18 U.S.C.

prison term on any

crime of

meaning."

of

Discussion
__________

person who "during and in relation to any

violence or

prior to this appeal,

word

924(c)(1).

924(c)(1) imposes a mandatory five-year

carries a firearm."

the

and abetting the

"use" was

116 S. Ct.

drug trafficking crime

After

. . . uses

the defendants were sentenced but

the Supreme Court held in

to be

given

at 506.

"use" under the statute,

or

its "ordinary

Accordingly, to

Bailey that
______

or natural

be convicted

a defendant must have "actively

-4-

employed the firearm during and in

crime."

Id. at 509.
___

relation to the predicate

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

in

of

924(c) would take on added importance

light of the new limitations on

Ramirez-Ferrer, 82 F.3d 1149,


______________

117

S.

Ct.

Cleveland,
_________

"carry"

405 (1996).

106

F.3d 1056

"use."

1152 (1st Cir.), cert. denied,


____________

Recently,

(1st

Cir.

as applying both to transport

defendant's person.

reading by

United States v.
_____________

Id. at 1067.
___

in

United States
_____________

1997), we

v.

recognized

in a vehicle and on a

We declined to limit this

adopting a requirement of

accessibility, finding

instead that "the distinguishing characteristic of "carry" is

not the

instant availability

fact that the item

by

of the

item carried, but

is being moved from one place

the carrier. . . .

Id. at 1068.

the

to another

This movement, however,

___

must

have

some nexus

Ferrer, 82 F.3d at
______

for aiding and

defendant

is

to the

1152.

predicate offense.

Because the firearms

abetting, the convictions will

found to

have to

have

charges were

stand "if one

carried a

924(c)(1) and

abetted."

We examine each defendant's case in turn.

-5-

to have

firearm in

violation of

Id.
___

the others

Ramirez________

aided and

A. Figueroa
________

Figueroa pleaded guilty to aiding and

use or

carrying of

firearms in

marijuana delivery and

that

he

himself

objected to

connection with

the cocaine air

did not

the section

use

abetting the

or

drop.

carry

He

the failed

maintains

any firearms

of his Pre-Sentence

and

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

conspirators.

The government

co-conspirators

weapons

import

"distributed"

were ready

from Figueroa

marijuana

responded

that

he

testify

during

would

to

the

informed the court

to

and during

firearms

the

the

have

that five

that they

drop.

by

facilitated

preponderance

impeached these

and

of the

distributed

witnesses'

The court

evidence

that

weapons

to

the

to

Figueroa

testimony by his own testimony and that of Rivera.

found

received

unsuccessful attempt

cocaine

co-

Figueroa

the

co-

conspirators on the two relevant occasions.

This finding is enough

the

bring

meaning of

and

to support

carrying within

924(c)(1) and under Cleveland.


_________

distribute

firearms

to

his

In order to

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",

that

but to

at least

requirement,

objections

"pleaded

aiding and abetting

one other

however,

to the

guilty

PSR,

to

distribution scheme

another
_______

is

carrying, requiring

defendant carry

easily

a firearm.

met.

In

Figueroa acknowledged

participating

knowing (as

in

an

an aider and

his

This

written

that he

illegal

had

drug

abettor) that

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

to

aiding

and abetting

the other defendants,

the

use or

carrying

pleaded guilty

of firearms.

Because we

the meaning

have found that Figueroa

of

924(c)(1),

carried firearms within

Rivero's

admitted

status

as

Figueroa's co-conspirator

in the drug trafficking offense is

sufficient

guilty plea to

to uphold his

the firearms count

under Ramirez-Ferrer.
______________

Moreover, Rivero did not object to the

section

that

in

his

PSR

stated

that

Figueroa

brought,

____________________

1.
plea

We also note that all three defendants at their change of


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

definition

plea.

of "aiding

During

the

THE

COURT:

and

Rule 11

abetting" when

hearing the

it accepted

charge

is

aiding and

abetting, which means if there is a group


of

persons that

are

in common

carrying out an activity

his

following colloquy

ensued:

The

imprecise

consort

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
an aider

or abettor in the possession of

those firearms.
them

are charged as

You may

personally

on your

not have
person

had

but if

there were others that had them, then you


could be charged as
and that is what

an aider and abettor

you are charged with in

Count 6.

THE DEFENDANT:

THE

COURT:

Yes, sir.

And

that is

what you

are

pleading guilty to.

THE DEFENDANT:

We

fail to

see,

Yes, sir.

and Rivero

lacking in this explanation.

firearms we find that the

has

not explained,

what

was

Based on Figueroa's carrying of

evidence is sufficient to

support

Rivero's aiding and abetting the carrying of firearms.2

____________________

2.

Rivero also complains that the court

Bailey
______

law

in

its

rendering the guilty


explained,

explanation

of

erred by using pre-

the

firearms

plea non-knowing and voluntary.

ante, however,
____

Rivero accepted

charge,
As we

the government's

-8-

C. Cespedes
________

Unlike the other two defendants, Cespedes

does not

seek

to overturn

Instead,

he

his guilty

contests

the

plea to

the firearms

imposition

of

the

charge.

five-year

consecutive sentence required under

924(c), arguing for

concurrent

5G1.2(c).3

sentence under

strictly speaking,

properly

2255,

pursued

U.S.S.G.

appeals to "correct a

via

touch

Although,

sentence" are more

habeas petition

Cespedes' arguments

under

on the

28

U.S.C.

validity of

the

conviction, making review appropriate in this forum.

Cespedes contends "the elements of carrying or use

were not

dispose of

present in relation

this assertion

in

to the Count

short order.

One crime."

We

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
firearms,

that

Figueroa

negating

any

facilitated and
possible

claim

distributed
of

ignorance

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
run

the sentences
concurrently,

on all
except to

otherwise required by law.

-9-

counts shall
the extent

the
or

the

PSR.

Given that

behavior meets

of

we have already

found that Figueroa's

the standard for carrying

924(c)(1),

we

see

no

reason

within the meaning

to

reverse

Cespedes'

sentence on this basis.

Cespedes

including

earlier

in his

withheld

contendere.

also

claims

that

criminal history

adjudication

erred

in

category computation

an

ending

There are two prongs to

the

in a

court

plea

his attack.

of

nolo

First, he

argues that a plea of nolo contendere can not be equated with

a guilty plea for the purposes

We addressed this issue

886

of the sentencing guidelines.

in United States v. Pierce,


_____________
______

(1st Cir. 1995), cert. denied, 116 S.


_____________

where

we concluded

whether

"by

guilty

that an

plea,

event which

trial,

contendere," is includable in a

computation.

or

60 F.3d

Ct. 2580 (1996),

establishes guilt,

by

plea

of

defendant's criminal history

Id. at 892.
___

Cespedes' second argument is that the court

have

allowed

nolo

him to

attack

collaterally

this same

should

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
______
_____________

collateral attack on a prior state conviction at a federal

sentencing proceeding

claim

total absence

Amendment.

Id. at
___

can be had

of

496.

only if the

counsel in

Such

defendant can

violation of

was

not the

the Sixth

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-