* 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 Wallace, 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-Appellant. 

Before TACHA and McKAY , Circuit Judges, and BROWN, * Senior District

Judge.
1 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.

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TACHA , Circuit Judge.

Richard Powell appeals from the district court’s decision 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 decision 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 grand jury charged Powell

with one count of possession with intent to distribute 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 firearm 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 agreed to plead guilty to count two,
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and the government agreed to dismiss the other counts and not to bring other

charges against Powell or his family members. In late 1994, the district court

accepted the agreement and sentenced Powell to the mandatory five-year sentence

required for violations of § 924(c). Powell did not 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 firearm 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, had 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 held 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 motion 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 pled
2 The government has never argued that the conviction could be upheld

under the “carry” prong of § 924(c). 

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guilty to § 924(c) charge), because there was no evidence that he actively

employed a firearm in connection with his drug trafficking crime and he thus did

not fall within the ambit of the statute. In response, 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 held 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 Powell did not directly appeal

his conviction, the court found that he had procedurally defaulted his claim unless

he could show cause and prejudice to excuse his default. 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. Dec. 23, 1996)

(unpublished), the court held that this substantial benefit precluded Powell from

proving the prejudice required to excuse his procedural default. (The court did

not address whether Powell had shown adequate cause to excuse the default.)
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Powell appealed. We granted a certificate of appealability and appointed the

Federal Public Defender to represent Powell on appeal 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 not knowing and voluntary where

the defendant is misinformed by the court of the elements 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 be 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 exception, 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 argument 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 default rule, the Court also

noted that a Bailey claim could be raised collaterally if the petitioner could prove

“actual innocence,” meaning factual rather than legal innocence. See Bousley ,
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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 record to rebut any

showing that petitioner might make. Rather, on remand, the

Government should be permitted to present any admissible evidence 

of petitioner’s guilt even if that evidence was not presented during

petitioner’s plea colloquy and would not normally have been offered

before our decision in Bailey . 

Id. at 1611-12. It further held that “[i]n cases where the Government has forgone

more serious charges in the course of plea bargaining, 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 contends instead that he is actually

innocent of the § 924(c) charge and that the case should be remanded for an

evidentiary hearing to allow him to prove actual innocence of the two counts

dismissed as part of the plea agreement. He does not explain how or what

evidence he may produce to prove his actual innocence 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 guilty of the underlying drug

trafficking offense charged in count one. 

To meet his burden of showing actual innocence, Powell “must demonstrate

that, in light of all of the evidence, it is more likely than not that no reasonable

juror would have convicted him.” Bousley , 118 S. Ct. at 1611 (quotations
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omitted). Although the district court did not address the actual innocence

question in light of Bousley , the record is sufficiently developed that we conclude

Powell cannot meet his burden of proving he is actually 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 District of

Colorado, the defendant, RICHARD POWELL, a/k/a “Duck”, did

knowingly, intentionally and unlawfully possess with intent to

distribute 5 grams or more of a mixture or substance containing a

detectable amount of cocaine base (“crack” cocaine), a Schedule II

controlled substance.

All in violation of Title 21, United States Code, Section

841(a)(1) and (b)(1)(B)(iii).

R. Vol. 1, Doc. 28 at 1. Count two, the count to which Powell pled guilty,

charged him as follows:

On or about April 12, 1994, in the State and District of

Colorado, the defendant, RICHARD POWELL, a/k/a “Duck”, did

knowingly and unlawfully use or carry one or more of the following

firearms, as defined in Title 18, United States Code, Section

921(a)(3), during and in relation to a drug trafficking crime, namely,

the knowing, intentional and unlawful possession with intent to

distribute 5 grams or more of a mixture or substance containing a

detectable amount of cocaine base (“crack” cocaine), a Schedule II

controlled substance, in violation of Title 21, United States Code,

Section 841(a)(1) and (b)(1)(B)(iii), to wit:

[firearms listed]
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All in violation of Title 18, United States Code, Section

924(c). 

Id. at 1-2. Powell’s plea agreement contained the factual 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 establish a factual basis for the offense

of conviction.” R. Vol. 1, Doc. 52 at 2. The agreement described the evidence

against Powell, which was as follows: On April 11, 1994, police officers

responded to a domestic violence complaint at Powell’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 his truck, for which Powell

consented to a search. In the compartment, officers found a loaded pistol, ziploc

bags, and approximately $2,780 in cash. Powell also had about $600 on his

person. 

Officers executed a search warrant at the stash house 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, a cellular 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 subsequently interviewed Keith Sykes,

a defendant in another case, who stated that he purchased multiple ounces of
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crack from Powell on a regular basis from 1990 to 1992 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 crack, apparently at the stash

house. After Powell was arrested, officers found a piece of paper in his wallet

containing the name and phone number of the landlord 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 government

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 background giving rise to

this charge in Count Two to which you want to plead guilty?
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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 all material facts alleged in

the charge. Under § 924(c), this includes admitting 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 factual finding that there is an

adequate factual basis for the plea.”) (quotation omitted). As can be seen,

through the plea agreement, plea colloquy, and guilty 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 under count one; that is, a

reasonable jury could have relied on this admission to 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-plea hearing that he

“carried” firearm). Powell therefore cannot demonstrate the innocence necessary
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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.