United States Court of Appeals,

Fifth Circuit.

No. 96-30009.

UNITED STATES of America, Plaintiff-Appellee,

v.

Byron STILL, Defendant-Appellant.

Dec. 10, 1996.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Byron Still pleaded guilty to six counts in a second superseding indictment. Still appeals his

guilty pleas to counts one and two on the ground that the district court failed to advise him of the

correct mandatory minimum sentence applicable to count one. He also appeals the district court's

denial of his motion to withdraw his guilty plea to count three. We affirm in part and vacate in part,

remanding to enable Still to replead to count one.

I

Jose Bartolo Menjivar arranged for Jorge Salgado III and a Drug Enforcement Administration

("DEA") cooperating individual ("CI") to transport four kilograms of cocaine from Houston, Texas

to a buyer in New Orleans, Louisiana. The CI notified the DEA of the transaction. Upon their arrival

at a Days Inn Motel in New Orleans, Salgado and the CI arranged fo r Byro n Still to purchase the

cocaine at the motel. DEA agents o bserved Still's arrival at the motel where he gave Salgado

$20,000 in exchange for the cocaine. DEA agents then followed Still to his home.

The agents searched St ill's residence pursuant to a search warrant and arrest ed him after

discovering four kilograms of cocaine in the residence. The agents also discovered a nine millimeter

firearm under the front seat of the automobile Still had driven to the exchange with Salgado.

The government charged Still with one count of conspiracy to possess cocaine with intent to

di st ribute in violation of 21 U.S.C. § 846, a second count of possession of cocaine with intent to1 The record is unclear regarding whether Still's attorney and the prosecutor represented to Still

that he faced a range of 70-87 months on counts one, two, four, five and six, in addition to the

consecutive sixty month sentence on count three, or whether they failed to mention the sixty

month sentence to Still. The record is clear, however, that the district court informed Still that he

faced a consecutive sixty month sentence on count three.

2 At the close of the rearraignment hearing the government moved to dismiss the indictment

against Janice Still; the district court granted the motion. Although no plea agreement was

entered in this case and the government denied that one existed, Still stated at the plea hearing

that the government's dismissal of the indictment against his wife influenced his decision to plead

guilty. distribute in violation of 21 U.S.C. § 841(a)(1), a third count of using and carrying a firearm during

and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1), and three money

laundering offenses under 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(a)(2). Still's wife, Janice Taylor

Still, was charged as a co-defendant under counts one and two.

Still pleaded not guilty to the init ial indictment, and not guilty to a superseding indictment that

added Menjivar and Salgado as defendants under counts one and two. Still also pleaded not guilty

to a second superseding indictment that dropped count two as to Janice Still. Ultimately, however,

Still changed his mind and pleaded guilty to all counts of the second superseding indictment.

At the rearraignment hearing, the district c o urt informed Still that he faced a maximum

sentence of forty years in custody and a mandatory minimum sentence of five years in custody as to

counts one and two based on the four kilograms of cocaine seized at St ill's residence. The court also

informed Still of the maximum penalties for counts three, four, five and six. During the plea colloquy,

the court asked Still whether the sentencing guidelines applicable to his case had been explained to

him; Still responded "[n]ot clearly." Because no probation officer was present, Still's attorney and

the prosecutor explained to Still during a recess in the hearing that he likely faced a sentencing range

of 70 to 87 months. 1 This range presupposed a drug quantity of four kilograms with an adjustment

for acceptance of responsibility. Following the recess, Still entered a guilty plea to each count of the

indictment. 2

The district court held sentencing hearings on December 6, 7, 13, and 21, 1995. At the

December 6 hearing, the court found that Still had dealt in "at least five kilograms of cocaine," based

upon the four kilograms seized at St ill's residence at the time of his arrest and upon relevant conduct3 See United States Sentencing Commission, Guidelines Manual, § 1B1.3(a)(1) (Nov. 1994)

[hereinafter USSG] (describing relevant conduct that determines Guidelines sentencing range);

see also USSG § 1B1.3, comment. (n.2) ("With respect to offenses involving contraband

(including controlled substances), the defendant is accountable for all quantities of contraband

with which he was directly involved....").

4 The Probation Officer had computed Still's sentencing range based upon 110 kilograms of

cocaine. The Probation Officer derived this amount from the four kilograms seized at Still's

residence at the time of his arrest and from relevant conduct revealed by Still's alleged statements

at the time of his arrest that he had dealt in two kilograms of cocaine every other week for the 24

months preceding his arrest. At the December 6 hearing, Still denied making these statements,

although he admitted that he dealt in a total of five kilograms of cocaine prior to his arrest.

5 As noted, in determining Still's sentencing range, the district court may have erroneously

adopted the Probation Officer's grouping of counts one and two with counts four, five and six as

directed by § 3D1.2 of the Guidelines. The Probation Officer recognized that our decision in

United States v. Gallo, 927 F.2d 815, 824 (5th Cir.1991), suggests that drug distribution activity

and money laundering activity invade distinct societal interests and thus should not be grouped

under § 3D1.2, y et grouped these counts pursuant to § 3D1.2.

This apparent conflict had no effect in this case, however. Section 3D1.4(c) of the

Guidelines directs the sentencing court to "[d]isregard any Group that is 9 or more levels

less serious than the Group with the highest offense level," as counts four, five and six

were here. Thus, the total offense level here remained the same whether counts four, five

and six were grouped with counts one and two. separate fro m t he charged offenses. 3 The district court's finding that Still had dealt in at least five

kilograms of cocaine triggered a mandatory minimum sentence of ten years as to count one, rather

than the five year mandatory minimum of which Still had been informed at the rearraignment hearing.

Because the district court's quantity finding differed from the amount o f co caine upon which the

Probation Officer had based her sentencing report, the district court continued the sentencing hearing

to December 7 to permit the Probation Officer to recompute Still's sentencing range. 4

On December 7, however, the court again rescheduled the sentencing hearing to permit the

parties to analyze the effect, if any, of the Supreme Court's December 6 decision in Bailey v. United

States,

--- U.S.

----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), on St ill's guilty plea to count three. At

the December 13 hearing, Still moved to withdraw his guilty plea to that count. The district court

again continued the sentencing to allow the parties to submit briefs regarding Bailey 's effect on St ill's

guilty plea to count three. At the final sentencing hearing on December 21, the court denied Still's

motion to withdraw his plea to count three and imposed sentence. The court grouped the drug

counts with the money laundering counts pursuant to § 3D1.2 of the Guidelines, 5 and sentenced Still6 The court also ordered Still to pay an $8,000 fine and a $300 special assessment, and

sentenced Still to a five-year term of supervised release for count one, a four-year term of

supervised release for count two, and to three-year terms of supervised release for counts three

through six, all to run concurrently.

7 In his reply, Still asserts that the district court's alleged Rule 11 error mandates vacatur of his

pleas to all six counts of the indictment. See Reply at 2, 4. However, "[a]n appellant abandons all

issues not raised and argued in its initial brief on appeal." Cinel v. Connick, 15 F.3d 1338, 1345

(5th Cir.) (emphasis in original), cert. denied, --- U.S. ----, 115 S.Ct. 189, 130 L.Ed.2d 122

(1994). Thus, we consider only Still's argument that the district court's failure to inform him of

the proper mandatory minimum sentence applicable to count one requires vacatur of his guilty

pleas to counts one and two.

8 Rule 11 provides, in pertinent part:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the

court must address the defendant personally in open court and inform the

defendant of, and determine that the defendant understands, the following:

(1) the nature of the charge to which the plea is offered, the mandatory

minimum penalty provided by law, if any, and the maximum possible

penalty provided by law, including the effect of any special parole or

supervised release term, the fact that the court is required to consider any

applicable sentencing guidelines but may depart from those guidelines

under some circumstances, and, when applicable, that the court may also

order the defendant to make restitution to any victim of the offense....

F ED .R.C RIM .P. 11(c)(1).

9 Although Still did not explicitly raise his Rule 11 argument in the district court and

acknowledged at oral argument that the Rule 11 error was not recognized until after his pleas and

sentencing, Still's attorney did bring the general issue of Still's understanding of the consequences

of his pleas to the district court's attention at the December 21 sentencing hearing. In any event, a

claim of non-compliance with Rule 11 will not be deemed waived even if a party fails to present it

in the district court. United States v. Coronado, 554 F.2d 166, 170 n. 5 (5th Cir.) ("[C]laims of

noncompliance with rule 11 must be resolved solely on the basis of the rule 11 transcript.... We

can therefore adjudicate rule 11 challenges on direct appeal without an initial presentation of the

particular arguments to the district court."), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d

149 (1977). to concurrent terms of imprisonment of 121 months on counts one, two, four, five and six and to a

consecutive term of imprisonment of sixty months on count three. 6 Still appeals.

II

Still challenges his guilty pleas to counts one and two of the second superseding indictment, 7

arguing that the district court's failure to inform him of the proper mandat o ry minimum sentence

applicable to count one violated F ED .R.C RIM

. P. 11. 8 When an appellant claims that a district court

h as failed to comply with Rule 11, 9 we "conduct a straightforward, two-questi on "har mless error'analysis: (1) Did the sentencing court in fact vary from the procedures required by Rule 11, and (2)

if so, did such variance affect substantial rights of the defendant?" U nited States v. Johnson, 1 F.3d

296, 298 (5th Cir.1993) (en banc).

A

Still argues, and the government concedes, that the district court's failure to inform Still of

the correct mandatory minimum sentence applicable to count one mandates vacatur of St ill's plea to

that charge. We agree.

The district court informed Still that he was subject to a mandatory minimum sentence of five

years in custody for counts one and two. However, at the time of the Rule 11 colloquy, the quantity

of cocaine for which Still would be held responsible had not yet been determined. When the district

court determined at the December 6 sentencing hearing that Still would be held responsible for "at

least five kilograms" of cocaine, the mandatory minimum sentence applicable to count one became

ten years rather than five pursuant to 21 U.S.C. § 841(b).

Applying our Johnson standard, we conclude that th e district court vari ed from the

procedures required by Rule 11 when it failed to inform Still of the mandatory minimum sentence to

wh ich he co uld be subject under count one. This error certainly misled Still as to the statutory

minimum and "thereby amounted to a complete failure to address the plea-consequences concern of

Rule 11." U

nited States v. Watch, 7 F.3d 422, 429 (5th Cir.1993). Moreover, Still's rights were

substantially affected by the erroneous info rmat io n regarding the mandatory minimum sentence

applicable to count one. S ee id. (holding that "because the district court failed to inform Watch of

the minimum sentence which might be imposed, Watch did not fully understand the consequences of

his plea, and his rights were therefore substantially affected"). As a result, Still's plea to count one

must be vacated and the case remanded to enable Still to plead to this count again. S ee id. (vacating

and remanding to permit defendant to plead anew).

B

Still also argues tha t t he dist rict court's failure to inform him of the proper mandatory

minimum sentence applicable to count one mandat es vacatur of his guilty plea to count two. He10 We note that Still's argument is inaccurate to the extent it equates counsel's statements

regarding a possible sentencing range with the district court's responsibilities under Rule 11. contends that the district court's misstatement regarding the mandatory minimum sentence applicable

to count one infected his plea to count two because "the mandatory minimum sen t ence [he] faced

clearly was a material factor that affected his decision to plead guilty" because he pleaded guilty "with

the understanding that he faced a range of 70 to 87 months under the Sentencing Guidelines." 10

In response, the government maintai ns t hat Still's convictions are individual and that each

count of the indictment is "independent and divisible." The government contends that Still's

conviction on count two should be affirmed because Still received correct information regarding the

penalties applicable to count two and thus no Rule 11 error occurred with respect to that count.

To analyze St ill's claim, we first address the initial prong of our harmless error test, i.e.,

whether the district court varied from the procedures required by Rule 11. As noted, Rule 11 directs

t he district court to inform the defendant of, and determine that the defendant unde rstands, "the

nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law,

if any, and the maximum possible penalty provided by law...." F E D .R.C RIM .P. 11(c). Rule 11(c) by

its terms does not contemplate overlap of the counts, bu t rat her speaks in terms of individual

"charge[s] to which plea[s] [are] offered." Thus, a plain reading of Rule 11 requires the district court

to inform the defendant of the nature of the charge to which the defendant is pleading, any mandatory

minimum penalty, and the maximum possible penalty applicable to each count to which the defendant

is pleading guilty.

In this case, the district court complied with the Rule 11 procedures with respect to count

two when it informed Still of the correct maximum and mandatory minimum sentences applicable to

that count. Thus, applying the two-part standard of review to the individual charges to which Still

pleaded, we conclude t hat t he facts of this case do not satisfy the threshold inquiry because the

district court did not vary from the procedures required by Rule 11 with respect to count two. S ee

Johnson, 1 F.3d at 302 (ex plaining that we do not reach an analysis of whether sentencing court's

variance from procedures required by Rule 11 affected substantial rights of defendant until we find11 Rule 32(e) provides in relevant part:

If a motion to withdraw a plea of guilty or nolo contendere is made before

sentence is imposed, the court may permit the plea to be withdrawn if the

defendant shows any fair and just reason.

F ED .R.C RIM .P. 32(e). that sentencing court actually varied from mandated procedures).

III

Still also appeals the district court's denial of his motion pursuant to F ED .R.C RIM

. P. 32(e)

to withdraw his guilty plea to count three. A motion to withdraw a guilty plea is committed to the

discretion of th e dist rict court and its decision will not be disturbed absent an abuse of discretion.

United States v. Benavides, 793 F.2d 612, 616 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232,

93 L.Ed.2d 158 (1986).

Upon a showing of a "fair and just reaso n," a district court may permit a defendant to

withdraw a guilty plea at any time before sentencing. 11 F E D .R.C RIM

. P. 32(e); B enavides, 793 F.2d

at 616. Though Rule 32 is to be construed and applied liberally, there is no absolute right to

wit hdraw a guilty plea. B enavides, 793 F.2d at 616. In ruling on the motion, the district court

considers: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would

prejudice the government; (3) whether the defendant delayed in filing the mo t io n, and, if so, the

reason for the delay; (4) whether wit hdrawal would substantially inconvenience the court; (5)

whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing

and voluntary; and (7) whether withdrawal would waste judicial resources. U nited States v.

Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133

(1988).

Howev er, no single factor or combination of factors mandates a particular result. U nited

States v. Badger, 925 F.2d 101, 104 (5th Cir.1991). Instead, the district court should make its

determination based on the totality of the circumstances. Id. The burden of establishing a fair and

just reason for withdrawing a guilty plea remains at all times on the defendant. Id.; Hurtado, 846

F.2d at 997.12 Section 924(c)(1) provides in pertinent part:

Whoever, during and in relation to any crime of violence or drug trafficking crime

... for which he may be prosecuted in a court of the United States, uses or carries

a firearm, shall, in addition to the punishment provided for such crime of violence

or drug trafficking crime, be sentenced to imprisonment for five years....

18 U.S.C. § 924(c)(1) (West Supp.1996) (emphasis added). Here, Still argues that the Supreme Court's opinion in Bailey v. United States,

--- U.S.

----,

116 S.Ct. 501, 133 L.Ed.2d 472 (1995), issued between the time of Still's plea and his sentencing,

rendered his plea unknowing and involuntary because Bailey changed the law regarding t he "use"

prong of § 924(c)(1). 12 Reasoning that "Congress used two terms ["use" and "carry"] because it

intended each term to have a particular, nonsuperfluous meaning," id. at ----, 116 S.Ct. at 507, the

Supreme Court held i n Bailey t hat a conviction under the "use" prong of 18 U.S.C. § 924(c)(1)

requires evidence sufficient to show an active employment of a firearm by the defendant. I d. at ----,

116 S.Ct. at 505.

Bailey does not, however, address the "carry " prong of § 924(c)(1). S ee United States v.

Cox, 83 F.3d 336, 342 (10th Cir. 1996) (" B ailey addresses the requirements for using a firearm;

whereas defendant was charged with and convicted of carrying firearms.... Bailey, therefore, does

not apply to this case."). Thus, our prior precedents analyzing that prong are unaffected by the B ailey

holding. S ee United States v. Rivas, 85 F.3d 193, 195 (5th Cir.1996) ("As recognized by the

Eleventh Circuit, because Bailey did not address the "carrying' requirement, prior precedent analyzing

that prong was "not affected.' ") (quoting United States v. Farris, 77 F.3d 391, 395 n. 4 (11th Cir.),

cert. denied,

--- U.S.

----, 117 S.Ct. 241,

--- L.Ed.2d

---- (1996)), petition for cert. filed, 65

U.S.L.W. 3415 (U.S. Nov. 5, 1996) (No. 96-6558).

In this case, Still pleaded guilty to a conjunctive charge of "us[ing] and carry[ing] a firearm

... during and in relation to the commission of a drug trafficking crime." A disjunctive statute may

be pleaded conjunctively and proven disjunctively. U nited States v. Johnson, 87 F.3d 133, 136 n. 2

(5th Cir.1996); s ee also United States v. Ruiz, 986 F.2d 905, 911 (5th Cir.), cert. denied, 510 U.S.

848, 114 S .Ct . 145, 126 L.Ed.2d 107 (1993). In other words, despite having charged Still with13 Still argues that United States v. Presley, 478 F.2d 163 (5th Cir.1973), mandates reversal of

the district court's denial of his motion to withdraw his plea. In Presley, we held that appellants

whose pleas of nolo contendere to charges of violations of the Travel Act, 18 U.S.C. § 1952,

were called into question by a Supreme Court decision issued between entry of their pleas and

their sentencings "should have been permitted to withdraw their pleas of nolo contendere and to

go to trial before a jury on pleas of not guilty." Id. at 168.

Presley is not analogous to the present case, however. Bailey does not bear on

Still's plea to carrying a firearm during and in relation to a drug trafficking crime because

Bailey does not address that crime; Bailey affects only Still's plea to using a firearm. See

supra at 1079-80. "using and carrying" a firearm during and in relation to a drug trafficking crime, the government had

only to prove that Still "used or carried" a firearm to convict Still of count three. When Still pleaded

guilty to count three, he admitted both to using and to carrying a firearm during and in relation to a

drug trafficking crime. Thus, though Still now contends that B ailey would have affected his

willingness to plead guilty to "using" a firearm, he cannot persuasively argue that Bailey would have

affected his willingness to plead guilty to "carrying" a firearm because Bailey does not address the

"carry" prong of § 924(c)(1). As a result, the district court did not abuse its discretion in finding that

Still's plea to count three was voluntary and knowing. 13

Still also contends that the other Hurtado factors support his request to withdraw his plea.

Cognizant that no single factor or combination of factors mandates a particular result, and that Still

bears the burden of establishing a fair and just reason for withdrawal of his plea, Badger, 925 F.2d

at 104, we find t hat the remaining factors do not demonstrate that the district court abused its

discretion in denying Still's motion to withdraw his plea.

First, though Still contends that he asserted his innocence to the gun charge at the December

6 sentencing hearing, the record does not support St ill's characterization of his discussion with the

court. Still told the district court that he believed that rather than receiving a consecutive sixty month

sentence on the gun charge, he should receive a two-point increase for use of the gun. At the two

subsequent sentencing hearings, St ill's attorney argued that Still "had some reservations about the gun

charge. He did not feel as if the gun charge applied to him...." He also argued that Still "never felt

that the gun charge applied to the facts and circumstances of his particular case." We are not

convinced that these statements by Still and his attorney rise to the level of an assertion of innocenceto the charge.

Furthermore, at the rearraignment hearing Still agreed with the government's statement of the

evidence against him, which included the statement that "Still had a nine millimet er pistol with him

in the car during the transportation of the cocaine." DEA agents discovered the weapon under the

front seat of the automobile Still had driven to and from the drug transaction. In addi ti on, DEA

Special Agent Charles Stevens testified that Still told him that the firearm was in Still's possession

while Still drove the vehicle to and from the exchange.

We have held that the "carry" prong of § 924(c)(1) is met "if the operator of the vehicle

knowingly possesses the firearm in the vehicle dur ing and in relation to a drug trafficking crime."

United States v. Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir.), cert. denied, 504 U.S. 928, 112 S.Ct.

1990, 118 L.Ed.2d 587 (1992); see also United States v. Fike, 82 F.3d 1315, 1328 (5th Cir.) ("In

placing a gun under the driver's seat of a car, then driving the car to another location, one has carried

the gun.... This, in our view, satisfies § 924(c)'s carrying requirement."), c ert. denied,

--- U.S.

----,

117 S.Ct. 241,

--- L.Ed.2d

---- (1996), and cert. denied,

--- U.S.

----, 117 S.Ct. 242,

--- L.Ed.2d

----

(1996); U

nited States v. Speer, 30 F.3d 605, 612 (5th Cir.) ("The "carrying' requirement of § 924(c)

is met where a defendant operates a vehicle knowing the firearm is in the car."), cert. denied,

--- U.S.

----, 115 S.Ct. 603, 130 L.Ed.2d 514 (1994), and cert. denied,

--- U.S.

----, 115 S.Ct. 768, 130

L.Ed.2d 664 (1995). The government presented ample evidence, to which Still admit ted, that he

"carried" a firearm during and in relation to a drug trafficking crime in violation of § 924(c) as that

provision has been interpreted by this court. In any event, a claim of innocence, by itself, does not

justify withdrawal of a plea. Hurtado, 846 F.2d at 997.

Still next contends that the government would not be prejudiced by withdrawal of his plea.

Whatever the truth of this assertion, an "absence of a showing of prejudice by the government is not

sufficient to require withdrawal of the plea where "no credible reason is proffered.' " B enavides, 793

F.2d at 617 (quoti ng U

nited States v. Rasmussen, 642 F.2d 165, 168 n. 6 (5th Cir.1981)). As

discussed previously, Still has not proffered a credible reason for withdrawal.

Still also argue s t hat t he district court erred in denying his motion because he movedpromptly to withdraw his plea after the issuance of Bailey, because he had able counsel throughout

his plea and sentencing hearings, and because a trial on count t hree would not inconvenience the

district court or waste its resources. That St ill moved promptly to withdraw his plea and that the

district court may not be inconvenienced by a trial do not establish that the district court abused its

discretion by denying St ill's motion. S ee Bad ger, 925 F.2d at 104 (stating that even if factors of

government prejudice, inconvenience to court, and waste of judicial resources weighed in Badger's

favor, "they do not tip the scales to the extent necessary to find an abuse of discretion"). The fact

that Still had able counsel throughout his plea and sentencing hearings weighs against withdrawal of

his plea. See id. (finding that fact that defendant "was ably and effectively" represented by counsel

throughout proceedings supported district court's refusal to permit plea withdrawal).

In sum, these factors do not demonstrate that the district court abused its discretion in denying

St ill's motion to w it hdraw his guilty plea to count three. Rather, the totality of the circumstances

surrounding St ill's plea demonstrates that Still did not carry his burden of establishing a fair and just

reason for withdrawal of the plea.

IV

For the foregoing reasons, we VACATE Still's plea to count one and REMAND to permit

Still to plead anew to that count. We AFFIRM Still's plea to count two and AFFIRM the district

court's denial of his motion to withdraw his plea to count three.