Elawyers Elawyers
Ohio| Change

United States v. Trevino, 95-20686 (1996)

Court: Court of Appeals for the Fifth Circuit Number: 95-20686 Visitors: 4
Filed: Dec. 17, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-20686 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAYMOND PALOMO TREVINO, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas (95-CR-20603) _ November 29, 1996 Before KING, DUHÉ, and BARKSDALE, Circuit Judges. PER CURIAM:* Raymond Palomo Trevino appeals his conviction and sentence under 18 U.S.C § 924(c)(1) for aiding and abetting the use of a firearm during
More
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 95-20686
                         Summary Calendar



          UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

          v.

          RAYMOND PALOMO TREVINO,

                                      Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           (95-CR-20603)
_________________________________________________________________
                         November 29, 1996

Before KING, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Raymond Palomo Trevino appeals his conviction and sentence

under 18 U.S.C § 924(c)(1) for aiding and abetting the use of a

firearm during and in relation to a drug-trafficking crime.   He

argues that, in light of the Supreme Court decision in Bailey v.

United States, 
116 S. Ct. 501
(1995), the district court’s

acceptance of his guilty plea was reversible error because the


     *
        Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
record contained an inadequate factual basis to support it.

     Federal Rule of Criminal Procedure 11(f) provides that

before entering judgment upon a guilty plea, the court should

make “such inquiry as shall satisfy it that there is a factual

basis for the plea.”   The court may discharge this duty through

an inquiry of the defendant or an examination of relevant

materials in the record.   United States v. Adams, 
961 F.2d 505
,

508 (5th Cir. 1992).   The record must reveal specific factual

allegations supporting each element of the offense.     
Id. Trevino contends
that the record contains no facts to

establish that he “used” a firearm in relation to the drug

offense as that term is defined in Bailey.   We disagree.

Although not referred to during the plea hearing, the pretrial

detention order expressly finds that one of Trevino’s

coconspirators pointed a gun at police officers while endeavoring

to flee from the scene of an attempted drug theft.    This conduct

falls squarely within the Bailey definition of “use.”1    Under

Pinkerton v. United States, 
328 U.S. 640
(1946), Trevino can be

held responsible for his coconspirator’s use of a firearm in

furtherance of the conspiracy.   See United States v. Fike, 
82 F.3d 1315
, 1328 (5th Cir. 1996), cert. denied, 65 U.S.L.W 3264

     1
        In Bailey, the Supreme Court held that under § 924(c)(1),
the term “use” means “active employment,” including “brandishing,
displaying, bartering, striking with, and most obviously, firing
or attempting to fire, a 
firearm.” 116 S. Ct. at 508
. The Court
noted that “even an offender’s reference to a firearm in his
possession could satisfy § 924(c)(1).” 
Id. 2 (Oct.
7, 1996) (No. 96-5403).

     Accordingly, we hold that even if the district court failed

to comply with Rule 11(f) by not establishing an adequate factual

basis at the plea hearing, such failure was harmless error

because the record as a whole establishes a sufficient factual

basis to satisfy each element of the offense.   See 
Adams, 961 F.2d at 512-13
.

     AFFIRMED.




                                3

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer