* Honorable Wesley E. Brown, Senior District Judge, United States

District Court for the District of Kansas, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 20 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RICHARD POWELL,

Defendant-Appellant. No. 97-1449

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 96-B-1316)

Submitted on the briefs: Henry L. Solano, United States Attorney, Craig Wall ace, Assistant U.S. Attorney, and John M. Hutchins, Assistant U.S. Attorney, Mountain States Drug Task Force, Denver, Colorado, for Plaintiff-Appellee. Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Ap pellant.

Before TACHA and McKAY , Circuit Judges, and BROWN, * Senior District Judge.1 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially 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 ar gument. -2- TACHA , Circuit Judge.

Richard Powell appeals from the district court’s de cision denying his motion pursuant to 28 U.S.C. § 2255 challenging his conviction under 18 U.S.C. § 924(c) in light of Bailey v. United States , 516 U.S. 137 (1995). Because the district court did not hold an evidentiary hearing and make factual findings, we review its decision de novo. See United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). Although a recent Supreme Court decisi on changes the analysis somewhat, we nonetheless conclude the district court correctly denied the motion, and we affirm. 1 In a superceding indictment issued in 1994, a grandjury charged Powell with one count of possession with intent to distrib ute five grams or more of a substance containing crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (count one); using or carrying a fir earm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (count two); and possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) (count three). Pursuant to a plea agreement, Powell agree d to plead guilty to count two,-3-

and the government agreed to dismiss the other counts and not to bring other charges against Powell or his family members. In l ate 1994, the district court accepted the agreement and sentenced Powell to the mandatory five-year sentence required for violations of § 924(c). Powell did no t file a direct appeal. Subsequently, the Supreme Court issued its decision in Bailey v. United
States , 516 U.S. 137 (1995), interpreting the “use” prong of § 924(c). The Court held that to sustain a conviction for using a firearm in violation of § 924(c), the government must prove active employment of the fire arm during and in relation to the predicate crime. See id. at 144. Bailey defined “use” much more narrowly than nearly all lower courts, including this one, h ad previously defined the term.
See United States v. Holland , 116 F.3d 1353, 1356 (10th Cir.) (stating that “actions that were criminal pre- Bailey may no longer be such”), cert denied , 118 S. Ct. 253 (1997), overruled in part , Bousley v. United States , 118 S. Ct. 1604 (1998); see also id. at 1355 (noting that this court had previously hel d that a defendant “uses” a firearm “when it (1) is readily accessible, (2) is an integral part of the criminal undertaking, and (3) increases the likelihood of success for that undertaking.”) (quotation omitted). In June 1996, Powell filed pro se the instant motio n contending that his conviction should be vacated in light of Bailey and United States v. Barnhardt , 93 F.3d 706, 708 (10th Cir. 1996) (allowing Bailey challenge where defendant pled2 The government has never argued that the convictioncould be upheld

under the “carry” prong of § 924(c). -4- guilty to § 924(c) charge), because there was no ev idence that he actively employed a firearm in connection with his drug traf ficking crime and he thus did not fall within the ambit of the statute. In respo nse, the government did not argue that the § 924(c) conviction could be upheld in light of Bailey , but instead contended that because Powell substantially benefitted from his plea bargain by having the other charges dismissed, he should be he ld to the bargain despite any question about the validity of the § 924(c) conviction. 2 Adopting the magistrate judge’s recommendation, the district court essentially agreed with the government. Because Po well did not directly appeal his conviction, the court found that he had procedu rally defaulted his claim unless he could show cause and prejudice to excuse his def ault. It concluded that despite the lack of facts in the record to support the § 924(c) conviction, there was a factual basis supporting conviction under the two dismissed counts and that Powell substantially benefitted by the plea bargain. Relying on United States v. Fowler , No. 95-1207, 1996 WL 734637, at **5 (10th Cir. De c. 23, 1996) (unpublished), the court held that this substantial benefit precluded Powell from proving the prejudice required to excuse his proced ural default. (The court did not address whether Powell had shown adequate cause to excuse the default.)-5-

Powell appealed. We granted a certificate of appea lability and appointed the Federal Public Defender to represent Powell on appe al and file a supplemental brief. At about the same time, the Supreme Court issued its decision in Bousley v. United States , 118 S. Ct. 1604 (1998), addressing Bailey challenges to § 924(c) convictions following guilty pleas. Bousley recognized that a guilty plea to a § 924(c) charge may be constitutionally invalid as no t knowing and voluntary where the defendant is misinformed by the court of the el ements of a § 924(c) offense,

see id. at 1609, as most defendants had been prior to Bailey . Such an invalid plea that was not challenged on direct appeal may only b e challenged collaterally if the defendant falls within an exception to the procedural default rule. See id. at 1610-11. Addressing first the cause-and-prejudice e xception, the Court held that the mere fact that Bailey may have altered the settled law of most circuits regarding the meaning of “use” did not make the arg ument so novel as to constitute cause to excuse the failure to raise a Bailey -type challenge on direct appeal, see id at 1611, thus overruling our previously stated contrary view, see Holland , 116 F.3d at 1356. Turning to the other exception to the procedural de fault rule, the Court also noted that a Bailey claim could be raised collaterally if the petition er could prove “actual innocence,” meaning factual rather than legal innocence. See Bousley ,-6-

118 S. Ct. at 1611. The Court then stated that in a proceeding to determine actual innocence following a guilty plea, the Government is not limited to the existing recor d to rebut any showing that petitioner might make. Rather, on rem and, the Government should be permitted to present any admis sible evidence of petitioner’s guilt even if that evidence was notpresented during petitioner’s plea colloquy and would not normally h ave been offered before our decision in Bailey

. Id. at 1611-12. It further held that “[i]n cases wher e the Government has forgone more serious charges in the course of plea bargaini ng, petitioner’s showing of actual innocence must also extend to those charges.” Id. at 1612. Recognizing the impact of Bousley , Powell concedes that he cannot show cause to excuse his procedural default. He contend s instead that he is actually innocent of the § 924(c) charge and that the case s hould be remanded for an evidentiary hearing to allow him to prove actual in nocence of the two counts dismissed as part of the plea agreement. He does n ot explain how or what evidence he may produce to prove his actual innocen ce of the other two charges. In response, the government contends, inter alia, that by pleading guilty to the § 924(c) charge, Powell acknowledged that he was gu ilty of the underlying drug trafficking offense charged in count one. To meet his burden of showing actual innocence, Pow ell “must demonstrate that, in light of all of the evidence, it is more l ikely than not that no reasonable juror would have convicted him.” Bousley , 118 S. Ct. at 1611 (quotations-7-

omitted). Although the district court did not addr ess the actual innocence question in light of Bousley , the record is sufficiently developed that we conc lude Powell cannot meet his burden of proving he is actu ally innocent of count one, the drug trafficking charge. Count one of the superseding indictment, which was dismissed as part of the plea bargain, charged Powell as follows:

On or about April 12, 1994, in the State and Distri ct of Colorado, the defendant, RICHARD POWELL, a/k/a “Duc k”, did knowingly, intentionally and unlawfully possess with intent to distribute 5 grams or more of a mixture or substanc e containing a detectable amount of cocaine base (“crack” cocaine) , a Schedule II controlled substance. All in violation of Title 21, United States Code, S ection 841(a)(1) and (b)(1)(B)(iii). R. Vol. 1, Doc. 28 at 1. Count two, the count to w hich Powell pled guilty, charged him as follows:

On or about April 12, 1994, in the State and Distri ct of Colorado, the defendant, RICHARD POWELL, a/k/a “Duc k”, did knowingly and unlawfully use or carry one or more o f the following firearms, as defined in Title 18, United States Cod e, Section 921(a)(3), during and in relation to a drug traffic king crime, namely, the knowing, intentional and unlawful possession wi th intent to distribute 5 grams or more of a mixture or substanc e containing a detectable amount of cocaine base (“crack” cocaine) , a Schedule II controlled substance, in violation of Title 21, Uni ted States Code, Section 841(a)(1) and (b)(1)(B)(iii), to wit: [firearms listed]-8- All in violation of Title 18, United States Code, S ection 924(c). Id. at 1-2. Powell’s plea agreement contained the fac tual basis supporting his plea of guilty to count two, and stated that “[t]he parties agree that there is no dispute as to the material elements which establisha factual basis for the offense of conviction.” R. Vol. 1, Doc. 52 at 2. The agre ement described the evidence against Powell, which was as follows: On April 11, 1994, police officers responded to a domestic violence complaint at Powel l’s house in Northglenn, Colorado. His common-law wife, Dawn, unexpectedly told the officers that Powell was a crack dealer and had been since 1990. She told them that he maintained a “stash” house in Denver where he kept drugs and cash. She also told them that Powell had a secret compartment in h is truck, for which Powell consented to a search. In the compartment, officer s found a loaded pistol, ziploc bags, and approximately $2,780 in cash. Powell als o had about $600 on his
person. Officers executed a search warrant at the stash hou se and determined that no one lived there. During the search, they found what was later analyzed to be thirty-seven grams of crack, ziploc bags, scales, acellular telephone and pager, $2,825 in cash, two guns and numerous documents in Powell’s name as well as in the name of an alias Powell used. Officers subsequ ently interviewed Keith Sykes, a defendant in another case, who stated that he pur chased multiple ounces of-9-

crack from Powell on a regular basis from 1990 to 1 992 and that he often obtained the crack from Powell at the stash house. Another individual told officers that he had seen Powell holding a bag of c rack, apparently at the stash house. After Powell was arrested, officers found apiece of paper in his wallet containing the name and phone number of the landlor d of the stash house. The agreement also indicated that the government would present expert testimony that thirty-seven grams of crack is consistent with resale, not personal use. See id. at 2-5. At Powell’s change of plea hearing, the court referred him to the portion of the plea agreement containing the facts summarized above that the government contended it would be able to prove. The following colloquy ensued: Q [by the court]. . . Have you read all of that? A Yes, sir. Q Have you gone over it carefully with your lawyer? A Yes, sir. Q Do you understand those are the facts that the gov ernment indicates that they would be able to prove if this case went to trial?

A Yes. Q Is that a fair statement of the factual backgroundgiving rise to this charge in Count Two to which you want to pleadguilty?-10-

A Yes, sir. Q Are those facts true? A Yes, sir. R. Vol. 2 at 22. Based on Powell’s responses, the court determined there was an adequate factual basis for his plea. See id. at 26. “A plea of guilty is the equivalent of admitting al l material facts alleged in the charge. Under § 924(c), this includes admittin g to an underlying drug offense sufficient to support a conviction under that section.” United States v. Kelsey , 15 F.3d 152, 153 (10th Cir. 1994) (citations omitted); see also Barnhardt , 93 F.3d at 710 (“The acceptance of a guilty plea is deemed a f actual finding that there is an adequate factual basis for the plea.”) (quotation o mitted). As can be seen, through the plea agreement, plea colloquy, and guil ty plea to the § 924(c) charge itself, Powell admitted the conduct charged in count one of the indictment. This admission is sufficient to support a conviction und er count one; that is, a reasonable jury could have relied on this admissionto convict him of count one.
See Tannenbaum v. United States , 148 F.3d 1262, 1264 (11th Cir. 1998); cf. Barnhardt , 93 F.3d at 711 (affirming conviction under § 924( c) despite successful Bailey challenge where defendant admitted at change-of-pl ea hearing that he “carried” firearm). Powell therefore cannot demons trate the innocence necessary-11-

for his defaulted claim to be heard on the merits, and the district court was correct in concluding that his Bailey claim was procedurally barred.
AFFIRMED.