* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-10211

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VALENTINO GARCIA GONZALEZ,

Defendant-Appellant.

___________________

Appeal from the United States District Court

for the Northern District of Texas

(3:90-CR-256-H)

___________________

Dedember 17, 1998

Before JOLLY, SMITH, and Wiener, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Valentino Garcia Gonzalez appeals from the

district court’s denial of his motion filed pursuant to 28 U.S.C.

§ 2255, to vacate, set aside, or correct his sentence. The sole

issue in this appeal is whether a sufficient factual basis exists

to support Gonzalez’s guilty-plea conviction for “using and

carrying” a firearm during and in relation to a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1). As shall be seen,

this case like so many others of its kind, rises or falls on the
 

1 516 U.S. 137 (1995).

2

intensive factual situation that provides the framework for the

decision. For the reasons set forth below, we affirm the district

court’s denial of relief under Section 2255, grounding our decision

in the conclusion that the discrete facts and reasonable inferences

therefrom support the finding that Gonzalez “carried” the firearm

in question within the meaning of Section 924(c)(1).

I.

FACTS AND PROCEEDINGS

Gonzalez was charged in a two-count indictment with possession

of heroin with intent to distribute (Count 1) and using and

carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1) (Count 2). Gonzalez

pleaded guilty to Count 2 pursuant to a written plea agreement.

The district court sentenced Gonzalez to 60 months’ imprisonment,

three years’ supervised release, and a $50 special assessment.

After Gonzalez had been released from prison, the government

filed a motion to revoke his supervised release. Thereafter, in

April 1996, the district court held a revocation hearing and

determined that Gonzalez had violated conditions of his release. 

In May of that year, Gonzalez filed a motion pursuant to 28 U.S.C.

§ 2255, challenging his conviction in light of the Supreme Court’s

decision in Bailey v. United States.

1 The district court agreed to

defer Gonzalez’s sentencing on the supervised-release violations

until after Gonzalez’s § 2255 motion was resolved.
3

Concluding that sufficient evidence supported Gonzalez’s

firearms conviction, a magistrate judge recommended that the § 2255

motion be denied. The magistrate judge did not indicate whether

Gonzalez’s conviction was being sustained under the “use” prong or

the “carry” prong. The district court adopted the magistrate

judge’s findings, conclusions, and recommendations, over Gonzalez’s

objections. The court later sentenced Gonzalez to 18 months’

imprisonment for his supervised-release violations. Gonzalez filed

an application for a certificate of appealability (COA) to appeal

the denial of his § 2255 motion, which the district court granted,

and Gonzalez timely filed a notice of appeal.

A judge of this court then held Gonzalez’s appeal in abeyance

and ordered the parties to file the transcripts of the guilty plea

and sentencing hearings. Our colleague also ordered the parties to

file supplemental briefs addressing the precise facts relied on by

the district court, as evidenced by the transcripts, in

establishing the factual basis for Gonzalez’s guilty plea. The

parties supplemented the record with the appropriate transcripts

and submitted supplemental briefs in accordance with that order.

II.

ANALYSIS

Gonzalez argues that there is an insufficient factual basis to

support his § 924(c)(1) conviction in light of the Supreme Court’s

decision in Bailey. According to Gonzalez, the factual basis

supporting his guilty plea fails to show that he either “used” or
 

2 United States v. Sanders, 157 F.3d 302, 304 (5th Cir.

1998).

 

3 Id.

 

4 Fed. R. Crim. P. 11(f).

 

5 United States v. Carter, 117 F.3d 262, 264 (5th Cir.

1997).

 

6 Id.

 

7 See id.

4

“carried” a firearm. He maintains that the factual basis

establishes nothing more than the “inert presence” of a gun.

We review the denial of a § 2255 motion under two standards.2

Although the district court’s conclusions of law are reviewed de

novo, that court’s factual finding that there is an adequate

factual basis for a plea is reviewed only for clear error.3

Rule 11 requires a district court to make “such inquiry as

shall satisfy it that there is a factual basis for the plea.”4

“The factual basis must appear in the record and must be

sufficiently specific to allow the court to determine if the

defendant’s conduct was within the ambit of that defined as

criminal.”5 “Relief from a formal or technical violation of Rule

11 is not available in a § 2255 collateral attack, but instead is

available only upon a showing of prejudice.”6 Gonzalez would be

prejudiced if he entered a guilty plea to a crime which, based on

facts in the record, he did not commit.7

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

in relation to any crime of violence or drug trafficking crime

. . . uses or carries a firearm.” In Bailey, the Supreme Court
 

8 516 U.S. at 143.

 

9 118 S. Ct. 1604 (1998).

 

10 Id. at 1611.

 

11 Rather than arguing that Gonzalez’s Bailey claim was

procedurally barred, the government conceded the retroactive

application of Bailey in Gonzalez’s § 2255 proceeding.

 

12 See United States v. Drobny, 955 F.2d 990, 995 (5th Cir.

1992), which appears to have remained unaffected by Bousley. In

Bousley, the government invoked the procedural bar in the district

court. See Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir. 1996).

We have applied Bousley in three published opinions. See United

States v. Thompson, 158 F.3d 223, 225-26 (5th Cir. 1998); Sanders,

157 F.3d at 305-06; United States v. Sorrells, 145 F.3d 744, 749-51

(5th Cir. 1998). It is unclear in those cases, however, whether

the government invoked the procedural bar in the district court.

5

held that a conviction under the “use” prong of § 924(c)(1)

“requires evidence sufficient to show an active employment of the

firearm by the defendant, a use that makes the firearm an operative

factor in relation to the predicate offense.”8 Baily does not

affect the meaning of “carry” under § 924(c)(1).

A. Procedural bar

Gonzalez did not file a direct criminal appeal. The

government maintains that, inasmuch as Gonzalez failed to challenge

the validity of his guilty plea on direct appeal, his Bailey claim

is procedurally barred under Bousley v. United States.

9 The

failure to challenge the validity of his guilty plea on direct

review ordinarily would preclude Gonzalez from bringing this

collateral action absent a showing of either (1) cause and actual

prejudice or (2) actual innocence.10 The government, however,

failed to raise the issue of procedural bar in the district court.11

Accordingly, the government has waived the issue.12
In at least two recent unpublished (and thus unprecedential)

opinions, we have proceeded to the merits of a Bailey claim after

concluding that the government had waived the issue of procedural

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

States v. Granados, No. 97-50240, slip op. at 2 (5th Cir. Nov. 20,

1998)(unpublished); United States v. Green, No. 97-30012, slip op.

at 2 (5th Cir. Aug. 31, 1998).

6

B. Factual Basis 

Gonzalez stipulated to the following facts in his plea

agreement:

1. On or about May 4, 1990, in the Fort Worth Division

of the Northern District of Texas, VALENTINO GARCIA

GONZALEZ, defendant, did knowingly use and carry a

firearm, namely, an AMT, Backup, .380 caliber/9 mm,

pistol, serial number AA1468, during and in relation to

a drug trafficking crime, namely, the knowing possession

of heroin, a Schedule I controlled substance, with intent

to distribute, a crime for which he may be prosecuted in

a court of the United States.

2. On May 4, 1990, Fort Worth police officers obtained

an [sic] a warrant for the arrest of GONZALEZ for the

offense of attempted murder. That same day, these

officers located GONZALEZ at a motel located on Jacksboro

Highway in Fort Worth, Texas. Upon entry into the motel

room occupied by GONZALEZ, officers discovered numerous

small balloons containing heroin. The officers also

found scales, numerous gelatin capsules, three bottles of

lactose, used as a narcotic cutting agent, a mobile

telephone, two bullet proof vests, and a police scanner.

GONZALEZ knowingly possessed this heroin with intent to

distribute it. Near the numerous balloons containing

heroin, the officers discovered the above described

loaded handgun which belonged to GONZALEZ.

The prosecutor read the stipulated facts at Gonzalez’s

rearraignment as the factual basis for the guilty plea. Gonzalez

agreed that the prosecutor’s factual recitation was correct.

In further support of the factual basis for Gonzalez’s guilty

plea, the government urges reliance on facts in Gonzalez’s PSR and

factual findings of the magistrate judge. According to the PSR,
 

13 See United States v. Wainuskis, 138 F.3d 183, 185-86, 188

(5th Cir. 1998); see also United States v. Adams, 961 F.2d 505,

512-13 (5th Cir. 1992)(in a direct criminal appeal, this court may

look to whole record, including the PSR, to determine whether

district court’s failure to establish adequate factual basis

amounted to harmless error).

7

Gonzalez told police officers after his arrest that “he had thought

about going for his gun when the officers entered the room.” The

PSR also indicated that two other individuals were in the motel

room with Gonzalez and that the gun was on a dresser “in close

proximity to Gonzalez.” The magistrate judge made additional

factual findings, which were subsequently adopted by the district

court; specifically, that the gun was in plain view and that the

gun was “easily accessible” to Gonzalez “[g]iven the close confines

of a motel room.”

The record reflects that the magistrate judge relied on facts

in the PSR in determining whether a sufficient factual basis

existed for Gonzalez’s guilty plea. The record also reflects that

Gonzales, rather than objecting to the magistrate judge’s factual

findings, agreed with them. As the magistrate judge relied on

information in the PSR, and as Gonzales did not object to the

magistrate judge’s factual findings, we may consider the

information in the PSR and the magistrate judge’s factual findings

in determining whether a sufficient factual basis supports

Gonzalez’s guilty plea.13

C. “Use”

The government has conceded that, in light of Bailey, there is

not a sufficient factual basis to support Gonzalez’s conviction
 

14 See Bailey, 516 U.S. at 148 (noting that “use”

encompasses “the silent but obvious and forceful presence of a gun

on a table”); Wainuskis, 138 F.3d at 188-89 & n.18 (affirming

defendant’s § 924(c)(1) conviction on alternative grounds of aiding

and abetting based on evidence that agents saw a codefendant

“seated in the kitchen with a gun visible next to him on a stool

and another loaded weapon visible within arm’s reach”).

 

15 See Bailey, 516 U.S. at 149 (“mere possession of a

firearm by a drug offender, at or near the site of a drug crime or

its proceeds or paraphernalia,” does not constitute “use” under §

924(c)(1)); United States v. Hall, 110 F.3d 1155, 1160-61 (5th Cir.

1997)(although officers found defendant in living room of mobile

home and a firearm on the floor of that same room, factual basis

failed to show that defendant “used” firearm because facts did not

indicate that defendant disclosed, displayed, mentioned, or

actively employed the firearm in any way); cf. United States v.

Johnson, 87 F.3d 133, 137-38 (5th Cir. 1996)(concluding that

defendant “used” firearm by reaching for gun in his vehicle which

was clearly visible to apprehending officers).

 

16 See Sanders, 157 F.3d at 304.

 

17 See Wainuskis, 138 F.3d at 186.

8

under the “use” prong of § 924(c)(1). Still, an argument could be

made that Gonzalez did in fact “use” the firearm because the

firearm was located near him in plain view.14 Nevertheless, the

Supreme Court’s decision in Bailey and our post-Baily decisions

support the government’s concession that the factual basis fails to

establish “use.”15

D. “Carry”

As Gonzalez pleaded guilty to an indictment stating that he

“did knowingly use and carry a firearm,” his conviction may still

be upheld if the “carry” prong of § 924(c)(1) is satisfied.16

Bailey did not address the “carry” prong of § 924(c)(1), so it had

no effect on our “carry” jurisprudence.17 In a nonvehicle context,

a conviction under the “carry” prong of § 924(c)(1) “requires both
 

18 Id. at 187.

 

19 110 F.3d 1155 (5th Cir. 1997).

 

20 Id. at 1157-58.

 

21 Id. at 1157.

 

22 Id.

 

23 Id. at 1158. 

 

24 Id.

 

25 See id. at 1159-61.

9

that the weapon be moved in some fashion and that it be within

arm’s reach (readily accessible).”18

The facts we consider today are somewhat analogous to those we

addressed in United States v. Hall.

19 The defendant in Hall was

arrested inside a mobile home in which both drugs and firearms were

found.20 When the agents entered the mobile home, the defendant and

another individual were in the living room where there was a large

quantity of cocaine.21 The cocaine was located, among other places,

on a coffee table in the living room.22 A handgun was on the floor

within a few feet of the living-room coffee table.23 The

defendant’s factual basis established that the handgun was “readily

available to the occupants of the trailer” and was “easily

accessible to protect the drugs, the drug proceeds, and to protect

the drug trafficking operation.”24

After concluding that the defendant’s conviction could not

stand under the “use” prong of § 924(c)(1), we turned to the

“carry” prong.25 We noted that the factual basis was deficient in
 

26 Id. at 1162.

 

27 Id.

 

28 Id.

 

29 Although Hall seems to suggest that the “carry” prong of

§ 924(c)(1) requires only that the firearm be transported by the

defendant or within the defendant’s reach, see 110 F.3d at 1161, in

Wainuskis we noted that “carrying” in a nonvehicle context requires

both that the firearm be moved by the defendant and that it be

within the defendant’s reach. See 138 F.3d at 187 & n.12.

10

several respects.26 First, the factual basis failed to indicate

that the defendant (1) transported the handgun, (2) had it on his

person or in his clothing, or (3) would have been able to reach

it.27 Second, the factual basis failed to indicate the spatial

arrangement of the defendant and the other individual in the living

room “with respect to the gun, the table or to each other.”28

Finally, the factual basis failed to establish “who transported the

gun to the trailer or moved it to its position on the floor.” We

concluded that the defendant’s conviction could not be upheld under

the “carry” prong of § 924(c)(1) because the facts showed only that

the defendant “was present in the room when the officers entered

and observed the firearm on the floor a few feet from the table.”29

The facts in the instant case are similar yet differ in

important particulars. They show that Gonzalez and two other

individuals were in a motel room when officers executed the arrest

warrant for Gonzalez. A handgun, which belonged to Gonzalez, and

a quantity of heroin were located in plain view on a dresser in the

motel room. The handgun was “in close proximity to Gonzalez” and

was “easily accessible” to him.
 

30 136 F.3d 465 (5th Cir.), cert. denied, 67 U.S.L.W. 3300

(U.S. Nov. 2, 1998) (No. 98-5114)).

 

31 Id. at 467.

 

32 Id. at 468.

11

As in Hall, there is no direct finding that Gonzalez moved or

transported the handgun or that the handgun was within arm’s reach.

Still, as the facts clearly establish that the gun belonged to

Gonzalez, a reasonable inference exists that he, as the owner,

brought the gun to the motel room. Even though the facts do not

conclusively rule out the possibility that one of the other two

individuals brought the gun to the motel room, the fact of

ownership, coupled with the proximity of the gun to Gonzalez and

his statement that he thought about “going for it,” go a long way

towards distinguishing this case from Hall.

To distinguish Gonzalez’s case from Hall further, the

government states that Gonzalez, unlike the defendant in Hall,

admitted that he carried a firearm during and in relation to his

crime of possession of heroin with intent to distribute. The

government relies on United States v. Ramos-Rodriguez,

30 in which

agents discovered heroin, cocaine, and 14 guns throughout the

defendant’s house.31 On appeal, we upheld the defendant’s

conviction under the “carry” prong because the defendant admitted

in his factual resume that he had “carried” a firearm during and in

relation to a drug trafficking offense.32 The defendant also

admitted that he had carried the firearms “in order to protect and

guard” the drugs in his house and that he had carried the firearms
 

33 Id.

 

34 Id.

 

35 Id.

 

36 Id. at 469; but see United States v. Gobert, 139 F.3d

436, 440 (5th Cir. 1998) (even though defendant admitted during the

plea colloquy that he violated § 924(c)(1), factual basis was

devoid of evidence that defendant or coconspirator used or carried

a firearm in relation to the underlying drug offense).

12

“during and in relation to his possession” of the drugs.33 We

rejected the defendant’s argument that he was merely reciting the

language of § 924(c)(1), reasoning that the word “carry” has a

plain meaning outside of the statute.34 We also noted that there

were no other statements in the factual resumé that conflicted with

the defendant’s admissions or that would cause a court to question

his veracity.35 Based on the defendant’s admissions, we were

“satisfied that at some point during and in relation to th[e] drug

trafficking crime, the firearms were within [the defendant’s]

reach, dominion or control and that he ‘carried’ the firearms

pursuant to § 924(c)(1).” 36

As the government points out, Gonzalez stipulated that he did

“knowingly . . . carry” the firearm found in the motel room “during

and in relation to” his crime of possession of heroin with intent

to distribute. As in Ramos-Rodriguez, the remaining admissions in

the factual resume do not contradict that statement. Rather,

Gonzalez’s admission that the firearm belonged to him bolsters that

statement. Gonzalez did not, however, specify how he used the

firearm “during and in relation to” his drug trafficking offense.

Unlike the defendant in Ramos-Rodriguez, Gonzalez did not specify
13

that he had carried the firearm to protect his drugs. This

difference is more than offset, however, by Gonzalez’s statement

that he almost went for the gun when the officers entered the room,

a clear indication not only of his close proximity to the gun and

nexus of the gun to the drug deal but, more importantly, that the

purpose for which the gun —— Gonzalez’s gun —— was transported to

the room containing the drugs was to protect them and the

traffickers, principally Gonzalez.

III.

CONCLUSION

Gonzalez’s case is factually analogous to both Hall and

Ramos-Rodriguez. Although Hall might seem to indicate that

Gonzalez’s guilty-plea conviction on the “carry” prong of §

924(c)(1) should be vacated, the instant facts place this case

closer to the Ramos-Rodriguez situation, indicating that his

conviction can and should be affirmed under the “carry” prong.

When all facts, admissions, and inferences of this case are viewed

in pari materia, the resulting picture is one that more closely

resembles Ramos-Rodriguez than Hall, leading us to the conclusion

—— on an admittedly close call —— that the district court’s

determination that Gonzalez “carried” the firearm is not clearly

erroneous and is therefore

AFFIRMED.