Filed: Dec. 14, 1999
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-11435 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OMAR ARREOLA-RAMOS, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Texas (2:96-CV-63 & 2:94-CR-36-3) _ December 14, 1999 Before JOLLY, JONES, and BENAVIDES, Circuit Judges. EDITH H. JONES, Circuit Judge:* Appellant Arreola-Ramos urges us to reverse the district court’s denial of relief concerning a pre-Bailey
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-11435 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OMAR ARREOLA-RAMOS, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Texas (2:96-CV-63 & 2:94-CR-36-3) _ December 14, 1999 Before JOLLY, JONES, and BENAVIDES, Circuit Judges. EDITH H. JONES, Circuit Judge:* Appellant Arreola-Ramos urges us to reverse the district court’s denial of relief concerning a pre-Bailey ..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-11435
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR ARREOLA-RAMOS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(2:96-CV-63 & 2:94-CR-36-3)
_________________________________________________________________
December 14, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Appellant Arreola-Ramos urges us to reverse the district
court’s denial of relief concerning a pre-Bailey guilty plea
conviction for “use” of a firearm during a drug-trafficking
offense. See Bailey v. United States, 516 U.S. 137 (1995). We
decline to do so.
The opinions of the magistrate judge and the district
judge correctly explain how both Bailey and the successor case,
Bousley v. United States, 118 S. Ct. 1604 (1998), apply to Arreola’s
petition. Bailey was decided one day before Arreola was sentenced
on a superseding indictment for one count of using and carrying a
*
Pursuant to 5th Cir. R. 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opinion should not be published and is not precedent except under the limited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 5th Cir. R. 47.5.4.
firearm and one count of using a telephone to facilitate a drug
trafficking crime. On the same day that he pled guilty to this
superseding indictment, a previous indictment, which charged two
separate counts of conspiracy and possession with intent to
distribute cocaine, was dropped. Arreola neither took steps in the
district court to raise a Bailey claim on his firearm conviction,
nor did he file a direct appeal. As a result, Bousley holds that
section 2255 relief was unavailable to Arreola in the absence of
cause and prejudice or actual, factual innocence. Arreola never
alleged legally sufficient “cause” in the district court, because
he claimed -- incorrectly, as it turned out -- that his plea
agreement precluded a direct appeal. 118 S. Ct. at 1607. This
prong of Bousley was inapplicable to Arreola.1
The actual innocence prong of Bousley is also unavailable
to Arreola on the record before us. Bousley points out that a
petitioner claiming factual innocence must be prepared to
establish, in addition to his innocence of the firearms charge,
that he did not commit any more serious crimes whose prosecution
was forgone by the government in exchange for the plea agreement.
Bousley, 118 S. Ct. at 1612. Arreola asserts conclusionally that
because he never pled guilty to the cocaine charges, he was
innocent of them. This assertion flies in the face of the factual
resume accompanying his guilty plea. The factual resume
1
In this court, for the first time, Arreola alleges ineffective
assistance of counsel, because he claims that counsel told him he could not
maintain a direct appeal. This contention involves factual issues not presented
in the district court, and we may not consider it. United States v. Rocha, 109
F.3d 225, 229 (5th Cir. 1997). The same is true for Arreola’s “equal protection”
claim regarding the relief given on his brother’s Bailey claim.
2
demonstrates that on one occasion he was involved in a transaction
to sell more than eight ounces of cocaine, and it admits his
longstanding participation in a cocaine distribution conspiracy.
A petitioner may not contradict the facts to which he has sworn
when pleading guilty. United States v. Sanderson, 595 F.2d 1021,
1022 (5th Cir. 1979). Moreover, as the district court noted,
Arreola was definitely exposed to more lengthy terms of
imprisonment on the cocaine charges than on the charges to which he
eventually pled guilty; the plea bargain reduced his maximum
exposure from sixty years to nine years imprisonment.
For these reasons, Arreola cannot succeed in challenging
his firearm conviction, and the judgment of the district court is
AFFIRMED.
3
