1 The statute reads, 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 pu nishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.” REVISED, April 16, 1998

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 97-30131

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES ROGER GOBERT,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Louisiana

March 31, 1998

Before WISDOM, SMITH, and DEMOSS, Circuit Judges.

WISDOM, Senior Circuit Judge:

I. Introduction

James Roger Gobert plead ed guilty to a one-count Bill of

Information charging him with using and carrying a firearm during

and in relation to a drug-trafficking offense, in violation of 18

U.S.C. § 924(c)(1). 1 The district court imposed a 36-month term of

imprisonment, to be followed by a three-year period of supervised

release. Subsequent to Gobert’s conviction, the Supreme Court2 116 S. Ct. 501 (1995).

3 Id . at 509.

4 We have already determined that Bailey applies retroactively to cases on collateral review. See United States v. McPhail , 112 F.3d 197, 199 (5th Cir. 1997).

5 We construe lib erally the claims of pro se appellants. Johnson v. Atkins , 999 F.2d 99, 100 (5th Cir. 1993).

2 decided Bailey v. United States. 2 In B ailey

, th e Court held that

the Government, to sustain a conviction under the “use” prong of 18

U.S.C. § 924(c)(1), must prove that the defendant actively employed

a firearm during t he predicate drug offense. 3 Gobert filed a

motion to vacate his sentence under 28 U.S.C. § 2255 on the ground

that his pre- Bailey conviction could no longer stand in light of

the Supreme Court’s interpretation of § 924(c)(1). 4 His argument,

construed liberally, 5 is that he was wrongfully convicted under the

“use” prong of § 924(c)(1) because the district court failed to

develop an adequate factual basis to support his guilty plea. The

district court denied Gobert’s motion and denied his request for a

certificate of appealability (COA). Gobert now petitions this

Court to issue a COA and vacate his sentence. For the reasons that

follow, we grant a COA, vacate Gobert’s conviction, and remand this

case to the district court for the entry of a new plea.

II. Background

The charges against defendant/appellant James Gobert arose

out of a “dry reverse” conducted by an undercover agent of the

Beauregard Parish Sheriff’s Office. The agent was driving in

Lake Charles, Louisiana with a known substance abuser when Alfred6 David Gobert pleaded guilty to a one-count Bill of

Information that was identical in all respects to that pleaded to by appellant James Gobert.

7 The record does not indicate the precise location of the

gun. It is unclear whether the gun was located in the cabin of the vehicle or in the trunk.

8 United States v. Guerra , 94 F.3d 989, 992 (5th Cir. 1996).

3 “Slick” Henry approached the two men and offered to sell them a

kilogram of cocaine. The undercover agent accepted the offer,

and Henry made several telephone calls to arrange a meeting

during which the transaction could be consummated. Henry then

told the agent that he and his associates would prefer to

purchase a kilogram of cocaine. Two vehicles appeared at the

meeting. James Gobert and Alfred Henry occupied one, and the

appellant’s cousin, David Gobert, and Pamela Jones occupied the

other. All four were arrested after agreeing to buy one kilogram

of cocaine from the undercover agent. 6 David Gobert and Jones

had a total of $17,890 in cash on their persons, and agents

recovered a .45 caliber pistol, the firearm that generated the §

924(c)(1) charge, from David Gobert’s car. 7

III. Discussion

We review the district court’s findings of fact in relation

to a motion filed under § 2255 for clear error, and we review

questions of law de novo. 8

A. Appealability

We will reach the merits of James Gobert’s contentions only

if we first determine that a COA should issue with respect to his

post -Bailey

claim. On April 24, 1996, the President signed into9 James Gobert filed his § 225 5 petition with the district

court on November 13, 1996, several months after the AEDPA went into effect. As such, we review his claim under the new statutory standards set forth below.

10 See 28 U.S.C. § 2253(c)(2).

4 effect the Antiterrorism and Effective Death Penalty Act

(AEDPA). 9 The AEDPA amended 28 U.S.C. § 2253, the gatekeeping

statute that governs the appealability of district court orders

in § 2255 proceedings. As amended, § 2253 requires that either

the district or circuit court issue a COA before the circuit

court may consider the merits of a prisoner’s appeal of the

denial of § 2255 relief. Most importantly, the amended version

of § 2253 permits us to grant a petition for a COA only if the

applicant has made a substantial showing of the denial of a

constitutional right. 10 At issue in this case, then, is whether

James Gobert has made such a showing. We believe that he has,

and that he is therefore entitled to a COA.

The gravamen of James Gobert’s complaint is that his

continued incarceration for engaging in conduct that did not

violate the terms of § 924(c)(1), as defined by the Supreme

Court, constitutes a violation of his due process rights. We

interpret his argument to be that even though Bailey is not

itself a case of constitutional dimension, its effect upon the

legality of his continued incarceration is indeed of

constitutional magnitude.

Many courts, including this court, have stated that Bailey

announced only a new statutory interpretation, and not a rule of1 1 McPhail

, 112 F.3d at 199; Triestman v. United States , 1997

WL 529622 (2d Cir.); In re Dorsainvil , 1997 WL 409442 at 3 (3d Cir.); In re Vial

, 115 F.3d 1192, 1195 (4th Cir. 1997); United
States v. Lorentsen
, 106 F.3d 278, 279 (9th Cir. 1997); H ohn v. United States
, 99 F.3d 892, 893 (8th Cir. 1996); In re Blackshire

, 98 F.3d 1293, 1294 (11th Cir. 1996). T riestman, Dorsainvil,
Lor entsen, and Blackshire were all decided in the context of successive § 2255 petitions.

12 Hohn , 99 F.3d at 893.

13 Id

.

1 4 Judge McMillian, dissenting from the majority ’s opinion

, concluded that “depriv ing persons of the benefit of the delayed notice that conduct is innocent violates due process by tolerating convictions for conduct that was never criminal. Under that proposition, a post- Bailey § 2255 motion presents a constitutional question as required by § 2253(c)(2).” Id . at 895.

5 constitutional law. 11 We continue to abide by this proposition.

In Hohn v. United States , however, the Eighth Circuit parlayed

this understanding into an entirely different proposition with

which we cannot agree-- that a prisoner who challenges his

conviction in light of the new standards articulated in Bailey is

not entitled to a COA. 12 It refused to issue a COA to a postBailey petitioner because “[he was] not making a constitutional

claim. He [was] making a claim to a federal statutory right.” 13

We do not so characterize James Gobert’s contention. Even

though Baile y itself is a statutory, non-constitutional case, it

does not necessarily follow that a prisoner’s post- Bailey

petition for collateral relief sounds in statutory, nonconstitutional law. We conclude, in fact, that the claim falls

squarely within the ambit of the Fifth Amendment. 14 Indeed, the

well-settled caselaw of this and other courts compels such a

conclusion. We have stated that if a defendant has been15 United States v. Shaid , 916 F.2d 984, 987 (5th Cir. 1990).

1 6 United States v. Addonizio , 442 U.S. 178, 186-87 (1979); Shaid , 916 F.2d at 987.

17 Grant v. United States
, 72 F.3d 503, 506 (6th Cir. 1996 ) ; Johnson v. United States
, 805 F.2d 1284, 1287 (7th Cir. 1986). S ee also Larkins v. State of Michigan

, 859 F.2d 152 (6 th Cir. 1988) (“the petitioner has failed to establish prejudice amounting to a fundamental defect resulting in a complete miscarriage of justice.
In fact, the petitioner has not shown any prejudice whatsoever that would call into question the vali dity of his conviction. Therefore, he was not denied due process.”); Bachner v. United
States
, 517 F.2d 589, 598, 599 (7th Cir. 1975) (Stevens, J., concurring) (“any procedural error sufficiently serious to be characterized as a fundamental defect which inherently results in

a complete miscarriage of justice would have violated the Due
Process Clause and therefore created constitutional error justifying a collateral attack pursuant to § 2255").

6 convicted of a criminal act that becomes no longer criminal, such

a conviction cannot stand. 15 After all, a refusal to vacate a

sentence where a change in the substantive law has placed the

conduct for which the defendant was convicted beyond the scope of

a criminal statute would result in a complete miscarriage of

justice. 16 Our sister circuits have held that a fundamental

defect resulting in a complete miscarriage of justice is

tantamount to a violation of the Due Process Clause of the Fifth

Amendment. 17 As we stated earlier, James Gobert maintains that

he was convicted and imprisoned for engaging in conduct that the

Supreme Court has since deemed non-criminal. If he is correct,

our refusal to vacate his sentence would result in a complete

miscarriage of justice; such a result would offend the Due

Process Clause of the Fifth Amendment. The foregoing authorities

make it clear to us that James Gobert has made a substantial

showing of the denial of his constitutional rights to due18 The district court erroneously denied Gobert’s request for

a COA on the basis of its conclusion that the issues presented in his § 2255 motion were not cognizable. “Section 2255 provides recourse only for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised

on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Smith , 32 F.3d 194, 196 (5th Cir. 1994). For the reasons stated above, § 2255 is an appropriate vehicle for the resolution of Jam es Gobert’s constitutionally-based claim.

1 9 United States v. Branch , 91 F.3d 699, 732 (5th Cir. 1996).

2 0 United States v. Pigrum

, 922 F.2d 249, 253 (5th Cir. 1991).

2 1 B a iley d id not affect the “carry” prong of § 924(c)(1). Previous precedent with respect to that prong remains unaffected. United States v. Rivas , 85 F.3d 193, 195 (5th Cir. 1996).

7 process, notwithstanding that Bailey announced merely a new

statutory interpretation. Accordingly, we issue a COA and

advance to the merits of his claim. 18

B. The Merits

Having granted the request for a COA, we must now decide

whether his conviction and sentence can stand in light of Bailey

.
The government, in order to support a conviction under §

924(c)(1), was required to prove that James Gobert either used or

carried a firearm during and in relation to the underlying drug

offense; 19 it need not have proved both. 20 The district court

concluded, and the government argues, that even though the

evidence did not support a conviction under the newly-interpreted

“use” prong of § 924(c)(1), the evidence was more than sufficient

to convict James Gobert under the “carry” prong of § 924(c)(1), 21

and specifically under established rules of co-conspirator2 2 Pinkerton v. United State s , 328 U.S. 640 (1946). In

Pinkerton

, the Supreme Court held that “a party to a conspiracy may be held respo nsible for a substantive offense committed by a coconspirator in furtherance of a conspirac y, even if that party does not participate in or have any knowledge of the substantive offense.” United States v. Jensen
, 41 F.3d 946, 955-56 (5th Cir. 1994).

2 3 United States v. Carter
, 117 F.3d 262, 264 (5th Cir. 1997).

24 Id

.

2 5 Rule 11 provides, in pertinent part: “Before accepting a plea of guilty, 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.”

26 Carter , 117 F.3d at 264.

8 liability. 22 In order to address this contention, we must

examine carefully the facts underlying James Gobert’s guilty

plea.

A court cannot accept a guilty plea unless there is a

sufficient factual basis for the plea. 23 The factual basis must

be evident in the record and must be sufficiently specific to

allow the court to determine whether the defendant’s conduct was

within the ambit of the statute’s prohibitions. 24 The district

court’s acceptance of a guilty plea, governed by Rule 11 of the

Federal Rules of Criminal Procedure, 25 is a factual finding that

we review for clear error. 26

“Relief from a formal or technical violation of Rule 11 is

not available in a § 2255 collateral attack, but instead is27 Id

.

28 Rivas , 85 F.3d at 195.

29 106 F.3d 636 (5th Cir. 1997), cert. granted

, 65 U.S.L .W. 3728 (U.S. Dec. 12, 1997) (No. 96-1654).

9 available only upon a showing of prejudice.” 27 We conclude that

James Gobert has suffered prejudice, and is therefore entitled to

relief. First, the factual basis for his guilty plea to the §

924(c)(1) charge is grossly undeveloped. The factual basis filed

by the government-- and relied upon by the district court at the

time he entered his guilty plea-- contains nothing more than the

bare assertion that “there was a .45 caliber pistol in David

Gobert’s vehicle.” Even though James Gobert admitted during the

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

devoid of evidence that he or David Gobert used or carried the

pistol in relation to the underlying drug offense.

We have stated that in the context of motor vehicles, “the

carrying requirement of § 924(c)(1) is met if the operator of the

vehicle knowingly possesses the firearm in the vehicle during and

in relation to a drug trafficking crime.” 28 It remains unclear

in this Circuit whether the “carry” prong, considered in the

context of a motor vehicle case, requires the government to prove

that the firearm was within reach and available for immediate

use. In United States v. Muscarello

, 29 a panel of this court

found that a defendant who knowingly possessed a loaded, though

not immediately accessible, gun in the locked glove compartment

of his vehicle during and in relation to a drug transaction30 82 F.3d 1315 (5th Cir. 1996).

3 1 Id

. At 1328 (evidence that defendant driving car with a gun within reach to attend and later flee from an aborted drug transaction was sufficient to support a conviction un der the “carry” prong of § 924(c)(1).

3 2 The Supreme Court ha s granted writs in M uscarello for the
purpose of resolving definitively the immediate accessibility question. See note 29, supra

.

10 carried the gun for purposes of 924(c)(1). In United States v.

Fike

, 30 however, we suggested that a defendant carries a firearm

within the meaning of § 924(c)(1) only if the firearm is within

reach, and therefore immediately accessible. 31 Whether the

firearm at issue in this case was immediately available for David

Gobert’s use is a matter of pure conjecture. Additionally,

nothing in the record reveals the precise location from which the

pistol was recovered. Without more, and especially in light of

the apparent indeterminacy surrounding the immediate

accessibility question, 32 we cannot say with any degree of

certainty that David Gobert carried a firearm for purposes of §

924(c)(1). Of course, the same rationale extends to James

Gobert, whose exposure to § 924(c)(1) liability is necessarily

predicated on the conduct of his codefendant, David Gobert.

Furthermore, even if we assume arguendo that David Gobert

knowingly transported the firearm, there is no evidence in the

record that suggests a nexus between the firearm and the drug

transaction the defendants sought to consummate. “The government

is shouldered with the burden of establishing some relationship

between the firearm [the defendant] possessed and the predicate3 3 United States v. Wilson

, 884 F.2d 174, 177 (5th Cir. 1989).

3 4 Muscarello

, 106 F.3d at 6 39; see also Wilson

, 884 F.2d at 177 (holding that something more than strategic proximity of drugs and firearms is necessary to honor Congress’s concerns).

3 5 See United States v. Menasche

, 348 U.S. 528, 538-39 (1955).

3 6 Compare Muscarello

, supra note 29 (factual basis for guilty plea established that “located inside the glove compartment of the Defendant Muscarello’s Fo rd truck was a loaded firearm which the Defendant k nowing [sic] possessed in his vehicle and carried for protection in relation to the abo ve described drug trafficking offense”).

11 drug trafficking offense.” 33 It is conceivable, of course, that

a gun carried in a vehicle during a drug transaction could be

entirely unrelated to that transaction. 34 Indeed, to conclude

otherwise would be to render meaningless the “in relation to”

language of § 924(c)(1) and thus violate our duty to give effect

to every clause and word of a statute. 35 The record before us

merely contains evidence that a firearm was stored in David

Gobert’s vehicle during the commission of a drug trafficking

offense. It therefore cannot be said that the factual basis in

this case is sufficiently specific to have allowed the district

court to determine whether David Gobert’s conduct, theoretically

attributable to James Gobert under the Pinkerton doctrine, fell

within the ambit of 924(c)(1)’s prohibitions. 36 Accordingly, it

was clear error for the district court to have accepted James

Gobert’s guilty plea.

In short, the district court accepted James Gobert’s plea in

violation of Rule 11(f). When such a violation occurs, our3 7 United States v. Thompson , 1997 WL 552633 at 3 (5th Cir.).

12 practice is to reverse, vacate, and remand for the entry of a new

plea. 37

VACATED AND REMANDED.