Opinion
Submitted September 20, 1996.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding.
N.D.Cal.
AFFIRMED.
Before: FERNANDEZ and CANBY, Circuit Judges, and JONES, District Judge
This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Darryl Sims appeals his conviction and 181-month sentence following his guilty plea to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and to using or carrying a firearm during and in relation to a drug trafficking crime, in violation of Protection Clause; (2) the rule of lenity requires the district court to sentence Sims for possession of cocaine hydrochloride (cocaine powder), not cocaine base (crack); and (3) there is an insufficient factual basis for Sims' guilty plea for violating 18 U.S.C. § 924(c)(1). The government contends that Sims' valid waiver of appeal in the plea agreement requires the dismissal of this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
We review de novo whether an appellant has waived his statutory right to appeal. United States v. Khaton, 40 F.3d 309, 311 (9th Cir.1994). A defendant may expressly waive his statutory right to appeal if the waiver is made knowingly and voluntarily. United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994). "[S]o long as a plea agreement contains an express waiver of appellate rights, a Rule 11 colloquy concerning the waiver is not required." Id. A knowing and voluntary guilty plea waives the defendant's right to appeal pre-plea matters. United States v. Cortez, 973 F.2d 764, 766 (9th Cir.1992). However, a waiver of appeal does not bar a defendant from appealing a racially-based sentence. United States v. Johnson, 67 F.3d 200, 203 n. 6 (9th Cir.1995).
Here, Sims contends that 21 U.S.C. 841(b) and U.S.S.G. § 2D1.1 violate the Equal Protection Clause because Congress committed unconscious racism by imposing higher sentences for defendants convicted of offenses involving cocaine base (crack) than for defendants convicted of crimes involving cocaine hydrochloride (cocaine powder). Sims has not waived this issue. See Johnson, 67 F.3d at 203 n. 6. Sims' argument, however, is precluded by our decision in United States v. Dumas, 64 F.3d 1427, 1429-31 (9th Cir.1995) (Congress not motivated by racial animus when it enacted the crack/powder cocaine sentencing disparity), cert. denied, 116 S.Ct. 1341 (1996).
Additionally, because Sims knowingly and voluntarily waived his right to appeal all non-constitutional, pre-plea claims, we do not address his contention that the district court should have applied the rule of lenity and sentenced Sims based on possession of powder cocaine as opposed to crack cocaine. See Chapman v. United States, 500 U.S. 453, 463-64 (1991) (claim arising under the rule of lenity, a rule of statutory construction, is not a constitutionally-based claim); Michlin, 34 F.3d at 898.
Sims contends that, as a result of Bailey v. United States, 116 S.Ct. 501 (1995), there is an insufficient factual basis for his guilty plea to violating 18 U.S.C. § 924(c)(1). This contention is without merit. Section 924(c)(1) requires only two showings: (1) that the defendant used or carried a firearm; and (2) that the use or carrying was "during and in relation to" a "crime of violence or drug trafficking crime." Smith v. United States, 508 U.S. 223, 227-28 (1993). To satisfy the "carry" prong, the firearm must be immediately available for use by the defendant by being on or about his person. United States v. Hernandez, 80 F.3d 1253, 1258 (9th Cir.1996). In order to satisfy the "during and in relation to a drug trafficking offense" prong, the firearm must facilitate or have the potential of facilitating the drug trafficking offense. Smith, 508 U.S. at 238.
Bailey v. United States was decided during the pendency of Sims' appeal. However, as Sims concedes in his supplemental brief, the Bailey decision analyzed the "use" prong and not the "carry" prong of 18 U.S.C. § 924(c)(1). See Bailey v. United States, 116 S.Ct. 501, 503 (1995).
Here, Sims admitted at sentencing that he placed two loaded guns in a gym bag, which contained fourteen plastic baggies of crack cocaine, and threw the bag over the fence in order to hide it from the police. Sims additionally admitted that he had the guns "for his protection." Sims' testimony demonstrates that the loaded guns were immediately available to him. Furthermore, Sims' testimony demonstrates that the loaded guns facilitated his drug trafficking offense by providing a means of protection. Therefore, there was a sufficient factual basis for a violation of Section 924(c)(1). See id.; Hernandez, 80 F.3d at 1258.
Sims also contends for the first time in his supplemental brief that the district court failed to explain the nature of the charges before accepting his guilty plea, in violation of Fed.R.Crim.P. 11(c)(1). However, because Sims waived this argument by not specifically raising it in his opening brief, we do not address it here. See United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir.), cert. denied, 116 S.Ct. 67 (1995).
AFFIRMED.