UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6175

MARVIN MARION GARCIA,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-91-57-C-MU, CA-96-156-MU)

Submitted: January 30, 1998

Decided: March 9, 1998

Before ERVIN and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Marvin Marion Garcia, Appellant Pro Se. Frank DeArmon Whitney,

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North

Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Marvin Garcia appeals the district court's order denying relief on

his habeas petition filed under 28 U.S.C.A. § 2255 (West 1994 &

Supp. 1997). Garcia challenges the validity of his convictions, entered

pursuant to his guilty plea, of seven counts of using and carrying a

firearm in relation to a drug trafficking crime in violation of 18

U.S.C. § 924(c) (1994). Garcia contends that, in light of the Supreme

Court's decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct.

501 (1995), interpreting the meaning of "use" under § 924(c), the requisite factual basis for his plea was lacking and his plea was involuntary. Guilty pleas may be challenged collaterally on the ground that

the plea was not knowing and voluntary. Triestman v. United States,

124 F.3d 361, 367-68 n.6 (2d Cir. 1997). Moreover, for purposes of

this appeal, we will assume, without deciding, that a habeas petitioner

proceeding under § 2255 may collaterally challenge his plea on the

ground that it lacked a factual basis where the premise of the claim

is that the conduct for which the petitioner was convicted is, in light

of an intervening decision, not criminal. We note that we need not

decide whether this claim was procedurally defaulted by Garcia's failure to raise it on direct appeal because the Government did not assert,

and the district court did not rely on, procedural default in this case.

We reject Garcia's contention that the record demonstrates that he

did not "use" or "carry" a firearm, but merely possessed one, within

the meaning of § 924(c)(1) as that statute was interpreted by Bailey.

Garcia's plea waives any challenge to the facts which formed the

basis for the court's decision to accept his plea. Id. The record developed at the plea hearing discloses that Garcia and at least two coconspirators possessed weapons on their persons during a drug transaction interrupted by police executing a search warrant of Garcia's

apartment. Garcia had a pistol holstered on his side and a Derringer

pistol in front of him on the kitchen table where he was seated. The

table also contained drugs and drug paraphernalia. Such personal possession clearly meets the definition of "carry" under § 924(c). See

United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). In addition, one co-conspirator picked up a sawed-off shotgun when police

entered the apartment. This act amounted to a display, perhaps even

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a brandishment, of that weapon, which would constitute "use" under

Bailey. See Bailey, 116 S. Ct. at 508. Garcia is liable for any acts of

his co-conspirators which constitute use or carry under § 924(c). See

United States v. Phan, 121 F.3d 149, 152 n.2 (4th Cir. 1997).

In short, this is not a case where the petitioner pled guilty to conduct which was not criminal. Had someone been able to correctly

explain to Garcia the meaning of "use" under§ 924(c) at the time he

pled guilty, it would have been clear that his conduct was criminal.

Garcia's plea was therefore entered knowingly and voluntarily. See

Triestman, 124 F.3d at 367-68 n.6 (finding that plea is not voluntary

if entered under misapprehension of the law in relation to the facts).

Moreover, we find that the district court did not abuse its discretion

in finding a sufficient factual basis for Garcia's plea. See Mitchell,

104 F.3d at 652 (discussing standard of review). Hence, Garcia fails

to establish any violation, much less a prejudicial violation, of Federal

Rule of Criminal Procedure 11. See United States v. Carter, 117 F.3d

262, 264 (5th Cir. 1997) (finding collateral relief for Rule 11 violation

contingent upon showing of prejudice).

Accordingly, we deny a certificate of appealability and dismiss this

appeal. We decline to address Garcia's claim that there was no nexus

between his conduct and interstate commerce because it is improperly

raised for the first time on appeal. See Muth v. United States, 1 F.3d

246, 250 (4th Cir. 1993). We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

DISMISSED

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