Professional Documents
Culture Documents
____________________
No. 95-1856
Appellee,
v.
JULIO FIGUEROA-ROMERO,
Appellant.
_____________________
No. 96-1254
Appellee,
v.
ALFREDO CESPEDES,
Appellant.
____________________
No. 96-1255
Appellee,
v.
JOSE A. RIVERO-CABANAS,
Appellant.
____________________
____________________
____________________
Before
____________________
the Court,
on brief
of
Attorney,
Narcotic
&
Dangerous
Drug Secti
Acting Assistant
Chief, and
____________________
Attor
Per Curiam.
__________
pleaded
guilty to
drug
trafficking and
conviction or
to
the Supreme
more recent
in
Court's
firearm counts
924(c)(1), pursuant
opinion
in Bailey
______
v.
category.
We affirm.
I.
The
others
Beginning in 1993,
entered
controlled substances
attempts to import
did
not.
into
into Puerto
conspiracy
Rico.
They
to
smuggle
made several
Pre-sentence reports
overall organizer
managed
Background
__________
several
Cespedes
and manager
distribution
in Miami
some
of the conspiracy.
while
Cespedes
Figueroa managed
the
The defendants'
place in
in
mid-November.
of 1993.
The first
incidents
incident took
of marijuana.
-3-
at the
mouth of the
delivery
failed
Humacoa river
to
for two
materialize.
nights but
They
tried
the
again
Rivero
supplier
next
made
arrangements
to deliver cocaine by
cocaine
with
air drop.
a Colombian
intercepted by law
enforcement officials.
drug
defendant
possess
pleaded
with
guilty
intent
to
to
counts.
One
one count
distribute
of
conspiracy
cocaine,
21
to
U.S.C.
use
II.
18 U.S.C.
crime of
meaning."
of
Discussion
__________
violence or
word
924(c)(1).
carries a firearm."
the
"use" was
116 S. Ct.
After
. . . uses
to be
given
at 506.
or
its "ordinary
Accordingly, to
Bailey that
______
or natural
be convicted
-4-
crime."
Id. at 509.
___
that none of
the
record
contains
sufficient
facts
to
support
the
______
in
of
117
S.
Ct.
Cleveland,
_________
"carry"
405 (1996).
106
F.3d 1056
"use."
Recently,
(1st
Cir.
defendant's person.
reading by
United States v.
_____________
Id. at 1067.
___
in
United States
_____________
1997), we
v.
recognized
in a vehicle and on a
adopting a requirement of
accessibility, finding
not the
instant availability
by
of the
the carrier. . . .
Id. at 1068.
the
to another
___
must
have
some nexus
Ferrer, 82 F.3d at
______
defendant
is
to the
1152.
predicate offense.
found to
have to
have
charges were
carried a
924(c)(1) and
abetted."
-5-
to have
firearm in
violation of
Id.
___
the others
Ramirez________
aided and
A. Figueroa
________
use or
carrying of
firearms in
that
he
himself
objected to
connection with
did not
the section
use
abetting the
or
drop.
carry
He
the failed
maintains
any firearms
of his Pre-Sentence
and
Report ("PSR")
conspirators.
When
Figueroa voiced
this objection
at his
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
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
found
received
unsuccessful attempt
cocaine
co-
Figueroa
the
co-
the
bring
meaning of
and
to support
carrying within
distribute
firearms
to
his
In order to
co-conspirators,
or
on
his
person.
Either
is
enough
to
fulfill
the
-6-
requirements
of carrying
as in
this context,
the required
Figueroa,
however,
did
not
plead
guilty
to
"carrying",
that
but to
at least
requirement,
objections
"pleaded
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
distribution.
. . ."
(emphasis in original).1
The evidence
924(c)(1).
B. Rivero
______
Rivero, like
to
aiding
and abetting
the
use or
carrying
pleaded guilty
of firearms.
Because we
the meaning
of
924(c)(1),
Rivero's
admitted
status
as
Figueroa's co-conspirator
sufficient
guilty plea to
to uphold his
under Ramirez-Ferrer.
______________
section
that
in
his
PSR
stated
that
Figueroa
brought,
____________________
1.
plea
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
he should be allowed to
definition
plea.
of "aiding
During
the
THE
COURT:
and
Rule 11
abetting" when
hearing the
it accepted
charge
is
aiding and
persons that
are
in common
his
following colloquy
ensued:
The
imprecise
consort
those firearms.
them
are charged as
You may
personally
on your
not have
person
had
but if
Count 6.
THE DEFENDANT:
THE
COURT:
Yes, sir.
And
that is
what you
are
THE DEFENDANT:
We
fail to
see,
Yes, sir.
and Rivero
has
not explained,
what
was
evidence is sufficient to
support
____________________
2.
Bailey
______
law
in
its
explanation
of
the
firearms
ante, however,
____
Rivero accepted
charge,
As we
the government's
-8-
C. Cespedes
________
does not
seek
to overturn
Instead,
he
his guilty
contests
the
plea to
the firearms
imposition
of
the
charge.
five-year
concurrent
5G1.2(c).3
sentence under
strictly speaking,
properly
2255,
pursued
U.S.S.G.
appeals to "correct a
via
touch
Although,
habeas petition
Cespedes' arguments
under
on the
28
U.S.C.
validity of
the
were not
dispose of
present in relation
this assertion
in
to the Count
short order.
One crime."
We
Cespedes'
PSR
marijuana
"Mr. Figueroa
distributed several
firearms among
others, "while
River
. . . ."
Cespedes did
not object to
this section of
____________________
contention
firearms,
that
Figueroa
negating
any
facilitated and
possible
claim
distributed
of
ignorance
involuntariness.
3.
If
the
sentence
imposed on
the
count
the sentences
concurrently,
on all
except to
-9-
counts shall
the extent
the
or
the
PSR.
Given that
behavior meets
of
we have already
924(c)(1),
we
see
no
reason
to
reverse
Cespedes'
Cespedes
including
earlier
in his
withheld
contendere.
also
claims
that
criminal history
adjudication
erred
in
category computation
an
ending
the
in a
court
plea
his attack.
of
nolo
First, he
886
where
we concluded
whether
"by
guilty
that an
plea,
event which
trial,
contendere," is includable in a
computation.
or
60 F.3d
establishes guilt,
by
plea
of
Id. at 892.
___
have
allowed
nolo
him to
attack
collaterally
this same
should
state
plea.
on
Custis v. United States, 511 U.S. 485 (1994), which held that
______
_____________
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-
he had counsel
when he gave
the
2255.
affirmed.
________
-11-