Tuesday, July 18, 2006

Appeal Waiver in Plea Agreement Did Not Bar Appeal of Conviction; Evidence Insufficient to Support 924(c)(1)(A) Conviction

United States v. Palmer, No. 04-21016 (5th Cir. July 17, 2006).

Palmer pled guilty to possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)), and possession of five or more grams of cocaine base with intent to deliver (21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii)). He appealed, "challenging the sufficiency of the factual bases of his conviction." The court of appeals reversed Palmer's conviction on the gun count and affirmed his conviction on the drug count, holding:

1) The appeal waiver in Palmer's plea agreement did not bar him from appealing his convictions. The "Waiver of Appeal" language specifically waived Palmer's right to appeal his sentence, reserving only the right to appeal a sentence in excess of the statutory maximum or an upward departure that had not been requested by the Government. It also waived his right to collaterally attack his conviction or sentence in a post-conviction proceeding. Palmer argued on appeal that none of the language in the waiver applied to the direct appeal of a conviction. The court agreed: "Given our duty to construe appeal waivers narrowly, we read Palmer's agreement as having preserved his right to challenge his conviction." Slip op. at 7.

2) There was not a sufficient factual basis to support Palmer's conviction of possessing a firearm in furtherance of a drug trafficking crime. Palmer admitted to possessing the Lorcin .380 pistol that police found in his apartment. However, the pistol was unloaded and locked in a safe, all of the ammunition found in the apartment was of a caliber other than .380, and most of the drugs were found elsewhere in the apartment. Furthermore, although Palmer admitted purchasing the pistol for protection, he denied using the gun for drug trafficking. He also explained that he kept the pistol locked in the safe to keep children away from it. Based on Palmer's admissions during the guilty plea colloquy, as well as the other evidence, the court of appeals concluded that his conviction on the 924(c)(1)(A) count was plain error.

3) There was an adequate factual basis for Palmer's conviction of possession of crack with intent to deliver. In his guilty plea colloquy, Palmer denied dealing drugs from his apartment. However, in response to the district court's question about where he was dealing drugs, Palmer responded, "On the streets. And I was using drugs." Although it acknowledged the ambiguity of Palmer's responses to the court's questions, the court nevertheless found "no plain error in the district court's acceptance of these responses - combined with Palmer's possession - as together providing a sufficient factual basis for conviction under subsection 841(a)." Slip op. at 15.


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