Summary: Petitioner sought § 2255 review of his guilty plea and sentence. The Court denied the petition, holding that petitioner had validly waived habeas corpus rights and none of his complaints brought into question the voluntariness of that waiver.

Case Name: Vincent Lucero v. USA
Case Number: A1-01-33
Docket Number: 3
Date Filed: 3/27/01
Nature of Suit: 510

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

Before the Court is a motion by petitioner, Vincent Jesus Lucero, pro se, pursuant to 28 U.S.C. § 2255, under which he moves for a correction in sentence (docket #1 in case no. A3-01-33; docket #108 in case no. A2-99-52). For reasons set forth below, the motion is DENIED. ⁽¹⁾

On January 3, 2000, Lucero pled guilty to an indictment charging him with conspiracy to distribute marijuana and possession of marijuana, contra 21 U.S.C. §§ 841(a)(1), 846 and 2. The indictment also charged Lucero with possession of a firearm in furtherance of a drug trafficking crime, contra 18 U.S.C. § 924(c)(1). He was sentenced to sixty-nine months imprisonment: nine for the drug offenses plus a sixty-month enhancement dictated by § 924(c)(1)(a)(i) for possession of a firearm in furtherance of the drug offenses.

Lucero now attacks the firearm enhancement as improper. He has brought both an ineffective assistance of counsel claim plus a claim that his guilty plea was not voluntary, but both complaints advance essentially the same theory. In short, Lucero claims he never possessed or carried a firearm in the commission of a drug offense and that he never actively employed a firearm, as required by Bailey v. United States, 516 U.S. 137 (1995). He claims he possessed evidence that he did not use the firearms at issue in the commission of a crime, and that failure to present such evidence renders his counsel's assistance ineffective. He also apparently urges that his plea was involuntary because the factual basis could not have established that he actively employed the firearm in commission of a crime.

Since these arguments run together, the Court will consider them at once. In short, Lucero's complaints simply miss the point. Lucero was charged with, and pled guilty to, possessing a firearm in furtherance of a drug trafficking crime. He was not charged with using or brandishing the firearm; if he was, he would have been subject to the seven- and ten-year enhancements of § 924(c)(1)(A)(ii) and (iii). The statute does not require proof that Lucero used or brandished the gun. Therefore, the government was not required to prove these facts, and any evidence Lucero has proving he did not so use the firearm would not have affected his sentence.

Further, any arguments based on Bailey must necessarily fail since the statute under which Lucero was convicted was enacted after, and in response to, Bailey. See generally United States v. Alaniz, 235 F.2d 386, 389 (8th Cir. 2000). As Alaniz explains:

Congress amended § 924(c) in response to the Supreme Court's decision in Bailey[.] Bailey held that the "use" language of the pre-1998 version of § 924(c) did not encompass mere possession of a firearm during the commission of a crime; the statute required active employment of the firearm in relation to the predicate offense. The amendment "fixed" this problem by adding the possession-in-furtherance-of-a-crime language.

Id. (internal quotations and citations omitted) Therefore, reliance on Bailey is completely misplaced.

In conclusion, Lucero had his sentence enhanced because he pled guilty to possessing a firearm in furtherance of a drug trafficking crime. ⁽²⁾ The Court explained the elements of the crime and the enhancement to him and found that the government had established a factual basis for the plea. The objections he offers here - whether styled as ineffective assistance of counsel claims or defects in the plea procedure - are unavailing, because he attacks only whether he used or brandished the gun, an elements simply not required for his plea and sentence. Therefore, the motion is DENIED.

IT IS SO ORDERED.

Dated this _____ day of March, 2001.

RODNEY S. WEBB, CHIEF JUDGE
UNITED STATES DISTRICT COURT

1. No response from the United States is required because the Court has determined that the motion and file make clear that defendant is entitled to no relief. See 18 U.S.C. § 2255; see also Rule 4(b), Rules Governing Section 2255 Proceedings. The Court also notes some procedural concerns, since no direct appeal has been presented. However, the Court finds that, since it is clear Lucero cannot prevail, judicial economy dictates disposing of the merits rather than dwelling on procedure. See Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999).

2. The Court also notes Lucero waived the right to appeal or collateral attack of his sentence. The Court does not decide the case on this basis, however, since the issues presented are easy to resolve, and analysis of whether waiver operates in these circumstances may be more complicated.