United States of America, Plaintiff-appellee, v. Joseph B. Kelsey, Defendant-appellant, 15 F.3d 152 (10th Cir. 1994)

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US Court of Appeals for the Tenth Circuit - 15 F.3d 152 (10th Cir. 1994) Jan. 20, 1994

Stephen R. McCaughey, Salt Lake City, UT, for defendant-appellant.

Scott M. Matheson, Jr., U.S. Atty., Richard D. Parry, Asst. U.S. Atty., and Kevin L. Sundwall, Sp. Asst. U.S. Atty., for plaintiff-appellee.

Before TACHA, BALDOCK, and KELLY, Circuit Judges.

TACHA, Circuit Judge.

Joseph B. Kelsey appeals his conviction under 18 U.S.C. § 924(c) for possession of a firearm during and in relation to a drug trafficking crime. Mr. Kelsey appeals on the grounds that a conviction under Sec. 924(c) must be supported by an underlying conviction of a drug trafficking offense. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1 

On September 5, 1990, Mr. Kelsey was convicted of three counts of possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a) (1) (1988),2  and one count of carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) (1988). These convictions were later reversed by this court in United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991). Following plea negotiations, Mr. Kelsey pleaded guilty to a violation of Sec. 924(c) while the remaining charges were dismissed. Because all other drug trafficking charges were dismissed, Mr. Kelsey now appeals his Sec. 924(c) conviction arguing that such a conviction is not valid unless the defendant has also been convicted of an underlying drug trafficking offense.

In United States v. Hill, 971 F.2d 1461, 1467 (10th Cir. 1992) (en banc), we held that it is the existence of an underlying drug trafficking offense not a drug trafficking conviction which is required to support a conviction under Sec. 924(c). See United States v. Morehead, 959 F.2d 1489, 1502 (10th Cir. 1992); United States v. Sudduth, 457 F.2d 1198, 1201 (10th Cir. 1972); United States v. Ruiz, 986 F.2d 905, 911 (5th Cir.), cert. denied, --- U.S. ----, 114 S. Ct. 145, 126 L. Ed. 2d 107 (1993). The "language of Sec. 924(c) (1) provides only that the underlying offense be one 'for which [the defendant] may be prosecuted.' " Hill, 971 F.2d at 1467).3 

In this case, Mr. Kelsey pleaded guilty to the Sec. 924(c) offense.4  A plea of guilty is the equivalent of admitting all material facts alleged in the charge. Semet v. United States, 422 F.2d 1269, 1272 (10th Cir. 1970); see United States v. Davis, 900 F.2d 1524, 1525 (10th Cir.) (guilty plea waives all nonjurisdictional defenses), cert. denied, 498 U.S. 856, 111 S. Ct. 155, 112 L. Ed. 2d 121 (1990); United States v. Benson, 579 F.2d 508, 509 (9th Cir. 1978) (guilty plea conclusively admits all factual allegations of the indictment). Under Sec. 924(c), this includes admitting to an underlying drug offense sufficient to support a conviction under that section. See Hill, 971 F.2d at 1467 (stating that the defendant's commission of the underlying offense "is merely a matter of proof which may be met ... by the defendant's admission [of the underlying offense]").

Mr. Kelsey's guilty plea to the Sec. 924(c) offense provides ample showing of an underlying drug trafficking crime.



After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument


One count was later dismissed on the Government's motion


Hill interprets Sec. 924(c) as amended, however, the language in the statute relevant to this case was not changed


In his Plea Hearing Mr. Kelsey admitted he possessed drugs with the intent to distribute them and that he possessed a firearm in connection with his intent to distribute the drugs. [Tr. Vol. II, pg. 14.]