Bido v. United States

Background

Noel Bido was charged in the related criminal case, No. 14-cr-212, with racketeering conspiracy, narcotics conspiracy, and using, carrying, and discharging firearms in furtherance of those conspiracies. He pleaded guilty to the racketeering-conspiracy count and the firearm count. The court sentenced him to 90 months in prison: 30 months on the racketeering-conspiracy count and a mandatory consecutive 60 months on the firearm count. Bido did not appeal.

Bido later filed a motion under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a conviction or sentence in the court that imposed it. Relying on the Supreme Court’s decision in United States v. Davis, he argued that the racketeering conspiracy was not a qualifying “crime of violence” for purposes of 18 U.S.C. § 924(c), the firearm statute. The government agreed that the racketeering conspiracy was no longer a valid crime-of-violence predicate but argued that Bido’s challenge was procedurally barred and that the firearm conviction remained valid because the narcotics conspiracy was an alternative drug-trafficking predicate.

Court’s analysis

The court applied the procedural-default rule. That rule generally prevents a person from raising on collateral review a claim that could have been raised on direct appeal unless the person shows a valid reason for the earlier omission and actual harm from the alleged error. In the context of a guilty plea, the required showing of harm was a reasonable probability that the person would not have pleaded guilty and instead would have gone to trial.

The court said Bido had a plausible argument that the legal challenge to the firearm statute was not reasonably available before Davis. But it concluded that he had not shown the required harm. The court reasoned that the narcotics conspiracy charged in Count Two remained a valid predicate for the firearm conviction, even though the racketeering conspiracy no longer qualified. Bido’s presentence report and his sworn plea statements described his participation in narcotics activity and his carrying of a firearm during the conspiracies. The court found no evidence that Bido would have refused the plea if the firearm charge had been based only on the narcotics conspiracy, particularly because the sentencing range would have been the same.

The court also rejected Bido’s actual-innocence argument. It stated that a qualifying predicate offense need not be separately charged and result in a separate conviction to support a firearm conviction. Although the government had dropped the narcotics-conspiracy charge, the court considered the evidence described in Bido’s presentence report and plea allocution and concluded that he had not met the demanding standard for showing actual innocence.

Ruling and disposition

Judge Richard J. Sullivan, a circuit judge sitting by designation, denied Bido’s § 2255 motion. The court concluded that his challenge to the firearm conviction was procedurally barred because he had shown neither the required prejudice nor actual innocence.

The court also declined to issue a certificate of appealability because Bido had not made a substantial showing that a constitutional right was denied. It certified that an appeal would not be taken in good faith, so Bido could not proceed with an appeal without paying the filing fees. The court denied Bido’s request for appointed counsel as moot, directed the Clerk to terminate the pending motions, and closed the § 2255 case.