The opinion of the court was delivered by: CALDWELL
The defendant, Jose Luis Viera, has filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Pursuant to a plea agreement, the defendant had pled guilty to a violation of 18 U.S.C. § 924(c)(1), which makes it unlawful to carry or use a firearm during and in relation to a drug trafficking offense. The motion argues that the conviction is invalid under the Supreme Court's recent decision in Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).
In opposition, the government contends that the conviction can be sustained under Bailey and that, alternatively, if the defendant succeeds in vacating his conviction, the government should be allowed to reinstate the two counts that were dismissed as part of the plea bargain.
On October 29, 1991, the defendant and a co-defendant were named in a six-count superseding indictment. The defendant was charged: (1) in Count I with using and carrying a firearm on May 8, 1990, or aiding and abetting its use, during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); (2) in Count II with the unlawful acquisition of federal food stamps on May 8, 1990, in return for cocaine in violation of 7 U.S.C. § 2024(b); and (3) in Count III with using and carrying a firearm on May 16, 1990, during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1).
On December 8, 1992, the defendant executed a plea agreement in which he agreed to plead guilty to Count III. (Plea agreement, P 1). In pertinent part, this paragraph of the agreement also advised the defendant that:
The mandatory penalty for the offense is imprisonment for a period of five (5) years consecutive to any other sentence the defendant is serving . . . .
Paragraph one also provided that the defendant would admit when he entered his guilty plea that he was in fact guilty of Count III and that after sentencing the government would dismiss the other counts against him.
The agreement also provided that the defendant could not withdraw his guilty plea if he was dissatisfied with the court's sentence or if it declined to follow any of the parties' recommendations as to sentencing. (Id. at P 8). The agreement was silent as to whether the defendant could appeal, or attack collaterally, his conviction or sentence. Additionally, the agreement contained a merger clause, specifying that there were no other written or oral agreements and that "no other promises or inducements" had been made to the defendant. (Id., P 11) (brackets added).
The defendant pled guilty on the same day he signed the agreement. During his guilty-plea colloquy, as the basis for the plea and conviction, he admitted that he kept a 9-millimeter, semi-automatic gun in his bedroom where he also kept cocaine intended for sale. This admission was also made during an interview conducted on May 16, 1990, while local police were searching the defendant's apartment pursuant to a search warrant. According to the police report, the defendant also admitted that "someone had traded him the semi-automatic pistol for cocaine." (government's opposition brief, appendix B).
On March 5, 1993, the defendant was sentenced to the mandatory term of five years imprisonment to run consecutively to a state term of imprisonment he was then serving for drug offenses. Pursuant to the agreement, the other two counts were dismissed on motion of the government. The defendant took no direct appeal, and his 2255 motion, filed March 6, 1996, representing his first attempt at collateral relief, was prompted by Bailey.