TANNENBAUM v. U.S

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Docket Number

No. 97-4441. Non-Argument Calendar.

Advocates

Eric Mark Tannenbaum, Tallahassee, FL, pro se. William A. Keefer, U.S. Atty., Dawn Bowen, Evelio J. Yera, Adalberto Jordan, Asst. U.S. Attys., Miami, FL, for Respondent-Appellee.

Judges

John Cooper Godbold
James Clinkscales Hill
Peter Thorp Fay

Acts

Judiciary And Judicial Procedure — Habeas Corpus — Particular Proceedings — Federal Custody; Remedies On Motion Attacking Sentence
Crimes And Criminal Procedure — Firearms — Crimes — Penalties

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Smart Summary

Factual and Procedural Background

Eric Mark Tannenbaum, proceeding pro se, appealed the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for a conviction under 18 U.S.C. § 924(c)(1) (possession/carrying/using a firearm during a drug‑trafficking offense). He had pled guilty. He argued his plea was based on pre‑Bailey law regarding the "use" prong of § 924(c)(1) and, invoking Bousley, sought collateral review despite procedural default by claiming actual innocence. The district court denied relief; the Eleventh Circuit reviewed the denial and affirmed.

Legal Issues Presented

Whether Bailey v. United States (516 U.S. 137 (1995))—which clarified that "use" requires active employment of a firearm—invalidates Tannenbaum's guilty plea or otherwise provides collateral relief.
Whether Bousley v. United States (118 S.Ct. 1604 (1998)) permits collateral review of a procedurally defaulted claim of an unintelligent/unvoluntary plea if the petitioner can establish actual innocence.
Whether Tannenbaum's admission to carrying a loaded weapon during the drug transaction precludes a showing of actual innocence as to the "carry" prong of § 924(c)(1).

Arguments of the Parties

Appellant's Arguments

His guilty plea to carrying/using a firearm under § 924(c)(1) was based on the law prior to Bailey and thus may be invalid as to "use."
Although he procedurally defaulted by not challenging his plea on direct appeal, under Bousley he may obtain collateral review if he can show actual innocence.
He claimed the gun was inadvertently in his waistband and that he did not intend the weapon to be part of the drug transaction (arguing lack of relation to the offense).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Martin v. United States, 81 F.3d 1083, 1084 (11th Cir. 1996)	Standard of review in § 2255 proceedings (factual findings for clear error; legal issues de novo).	Cited to state the applicable standard of review.
Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991)	Pro se pleadings held to less stringent standard and liberally construed.	Relied upon to note liberal construction of appellant's pro se filings.
United States v. Everett, 129 F.3d 1222, 1225 (11th Cir. 1997)	Issues not raised below are normally deemed waived.	Used to frame procedural-default considerations.
Bousley v. United States, ___ U.S. ___, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)	Voluntariness/intelligence of a guilty plea can be attacked collaterally only if first challenged on direct review, except that collateral review may proceed if the petitioner can establish actual innocence (standard drawn from Schlup).	Explained that Tannenbaum's defaulted claim could be considered only if he shows actual innocence; court concluded he could not.
Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)	Requires proof of active employment of the firearm to establish "use" under § 924(c)(1).	Held Bailey affects only the "use" prong and does not alter the analysis for "carrying."
United States v. Farris, 77 F.3d 391, 395 n.4 (11th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996)	Bailey discussed only the "use" prong of § 924(c), not "carrying."	Used to support that Bailey does not affect carry convictions.
United States v. Range, 94 F.3d 614, 617 (11th Cir. 1996)	To convict for "carrying" a firearm it is sufficient to show the defendant knowingly carried a gun when the drug transaction occurred; subjective intent or inadvertence is not dispositive.	Applied to conclude Tannenbaum's admission to carrying a loaded weapon satisfies the "carry" prong.
Muscarello v. United States, ___ U.S. ___, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998)	"Carries a firearm" is not limited to on-person carrying; includes knowingly possessing firearms in a vehicle.	Referenced to support a broad understanding of "carrying" (possession in vehicle or on person).
Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941)	A plea is not intelligent unless the defendant receives "real notice of the true nature of the charge."	Cited in Bousley discussion regarding what makes a plea intelligent.
Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397	Collateral review of procedurally defaulted claims may proceed if constitutional error probably resulted in conviction of an innocent person.	Cited in explaining the basis for allowing collateral review upon a showing of probable innocence.
Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851, 867-868, 130 L.Ed.2d 808 (1995)	Defines "actual innocence" standard: must show that in light of all evidence it is more likely than not that no reasonable juror would have convicted him.	Quoted to state the standard Tannenbaum would need to meet to overcome procedural default under Bousley; court found he did not meet it.

Court's Reasoning and Analysis

The court reviewed the record, statutes, and caselaw and concluded there was no reversible error. It reasoned that Bailey addressed only the "use" prong of § 924(c)(1) and did not alter the analysis applicable to the "carrying" prong. Citing Range (and Farris/Muscarello), the court explained that to convict for "carrying" it is sufficient to show the defendant knowingly carried the firearm during the drug transaction; subjective intent or inadvertence is irrelevant to the carry determination. At his change‑of‑plea hearing Tannenbaum admitted carrying a loaded weapon in his waistband during the transaction; under Range that admission satisfies the "carry" prong. Because Tannenbaum cannot demonstrate innocence of the carry offense, he cannot use Bousley to overcome his procedural default. Applying Bousley and Schlup, the court found he failed to show the requisite actual‑innocence standard, so his defaulted claim of an unintelligent plea cannot be considered on the merits.

Holding and Implications

AFFIRMED.

Direct effect: the district court's denial of Tannenbaum's 28 U.S.C. § 2255 motion regarding his § 924(c)(1) conviction is upheld. Because the court concluded the admitted conduct satisfies the "carry" prong and Bailey affects only "use," Tannenbaum could not establish actual innocence to bypass procedural default under Bousley; no new precedent was created beyond application of existing controlling authorities.

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Eric Mark TANNENBAUM, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

PER CURIAM:

Eric Mark Tannenbaum appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for the violation of 18 U.S.C. § 924(c)(1) (possession of a firearm during a drug-trafficking offense).

On appeal, Tannenbaum argues that when he pled guilty to carrying and using a firearm in violation of § 924, his plea was based solely on the law before the clarification in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (requiring proof of active employment of the firearm in the commission of the offense to establish "use" under 18 U.S.C. § 924(c)(1)). He also argues that because of the Supreme Court's recent holding in Bousley v. United States, ___ U.S. ___, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), even though his claim was procedurally defaulted by not challenging the validity of his guilty plea on appeal, if he can establish "actual innocence," he may still be entitled to a hearing on its merits.

In a § 2255 proceeding, this Court reviews factual findings for clear error while it reviews legal issues de novo. Martin v. United States, 81 F.3d 1083, 1084 (11th Cir. 1996); Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991). Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed. Fernandez, 941 F.2d at 1491. But, issues not raised below are normally deemed waived. See generally United States v. Everett, 129 F.3d 1222, 1225 (11th Cir. 1997). "[T]he voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley, 118 S.Ct. at 1609.

We have reviewed the applicable statutes and caselaw, examined the relevant portions of the record, and considered the briefs of the parties; we find no reversible error.

Because Bailey discussed only the "use" prong of § 924(c), it did not change the analysis to be applied to determine whether evidence is sufficient to convict a defendant for "carrying" a firearm under § 924(c). See United States v. Farris, 77 F.3d 391, 395 n. 4 (11th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996). In order to convict a defendant for "carrying" a firearm, it is necessary only to show that the defendant knowingly carried a gun in a car that was being used as a drug-distribution center. United States v. Range, 94 F.3d 614, 617 (11th Cir. 1996) (defendant who knowingly carried a gun under the floormat of his car when delivering drug money was properly convicted of carrying a firearm under § 924(c), even though there was insufficient evidence to support his conviction for use of a firearm); see also, Muscarello v. United States, ___ U.S. ___, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (holding the phrase "carries a firearm" is not limited to the carrying of firearms on the person, but also applies to a person who knowingly possesses firearms in a vehicle, including in the locked glove compartment or trunk of a car).

In Bousley, ___ U.S. at ___, 118 S.Ct. at 1607, Bousley contended that neither he nor his counsel correctly understood the essential elements of the crime with which he was charged (§ 924(c)(1)) and that, therefore, his plea was constitutionally invalid. The Court noted that it has long held that "a plea does not qualify as intelligent unless a criminal defendant receives `real notice of the true nature of the charge against him.'" Id., citing Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941). Bousley did not challenge the validity of his plea on appeal and, by failing to do so, procedurally defaulted his claim. Bousley, ___ U.S. at ___, 118 S.Ct. at 1607. However, the Court stated that his "claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy `has probably resulted in the conviction of one who is innocent.'" Id., citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397. The Court went on to explain that to establish "actual innocence," the petitioner must demonstrate that, "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, ___ U.S. at ___, 118 S.Ct. at 1607, citing Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851, 867-868, 130 L.Ed.2d 808 (1995).

Tannenbaum asserts that he did not carry a gun "in relation to" a drug-trafficking offense. In support of this, he claims that the loaded weapon was "inadvertently" in the waistband of his pants when the drug transaction occurred and that he did not "intend" for the gun to be part of the drug transaction.

Neither the defendant's subjective intention for the weapon nor the alleged inadvertency of its presence was a factor in this Court's determination in Range that the defendant was "carrying" a firearm during and in relation to a drug-trafficking offense. Range, 94 F.3d at 617. Range held that in order to convict a defendant for carrying a firearm, it is necessary only to show that the defendant was "knowingly" carrying a gun when the drug transaction occurred. Id.

At his change-of-plea hearing, Tannenbaum admitted to carrying a loaded weapon in his waistband during the drug transaction. According to Range, this fact is enough to convict Tannenbaum under the "carry" prong of § 924(c). Id.

Therefore, because Tannenbaum cannot demonstrate that he is innocent of the "carry" prong of § 924(c), he may not rely upon Bousley to have his defaulted claim of an unintelligent plea considered on its merits.

Because Bailey, 516 U.S. at 137, 116 S.Ct. at 501, only affects convictions based upon the "use" prong of § 924(c)(1), and because Tannenbaum cannot demonstrate that he is innocent of the "carry" prong of § 924(c)(1), he may not rely upon Bousley, ___ U.S. at ___, 118 S.Ct. at 1604, to have his defaulted claim of an unintelligent plea considered on its merits. Accordingly, the district court did not clearly err in denying Tannenbaum's § 2255 motion to vacate, set aside, or correct his sentence for the violation of 18 U.S.C. § 924(c)(1).

AFFIRMED.