*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 1 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERNEST EARL CORRIGAN,

Defendant-Appellant.

No. 96-1354

(D.C. No. 96-B-704)

(CO)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.

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 cause is

therefore ordered submitted without oral argument.

Ernest Corrigan was indicted on charges of conspiracy to distribute

methamphetamine, distribution of methamphetamine, being a felon in possession
1

 Despite Mr. Corrigan’s guilty plea, he may assert that the factual basis for

his plea does not constitute a violation of section 924(c). See United States v.

Barnhardt, 93 F.3d 706, 708 (10th Cir. 1996).

2

 In Barnhardt, the indictment charged the defendant with using or carrying

a firearm, 93 F.3d at 709, while Mr. Corrigan was charged with using and

carrying a firearm. This difference is not significant. “It is hornbook law that a

crime denounced in the statute disjunctively may be alleged in an indictment in

-2-

of a firearm, and using and carrying a firearm during and in relation to a drug

trafficking offense in violation of 18 U.S.C.§ 924(c). He entered into a plea

agreement under which he pled guilty to the drug conspiracy charge and the

section 924(c) charge. After his conviction and sentencing, the Supreme Court

decided Bailey v. United States, 116 S. Ct. 501 (1995), in which the Court

rejected the broad definition of “use” employed by this circuit in interpreting

section 924(c) at the time Mr. Corrigan pled guilty. He now brings this action

under 28 U.S.C. § 2255, asserting that his conviction under section 924(c) cannot

stand in light of Bailey. The district court denied relief and Mr. Corrigan appeals. 

We affirm.

Mr. Corrigan argues that under Bailey there was no factual basis for his

plea of guilty to the section 924(c) charge.1 We have previously addressed the

retroactive application of Bailey in a section 2255 case when, as here, the

defendant pled guilty to a charge that he used or carried a firearm in violation of

section 924(c). See United States v. Barnhardt, 93 F.3d 706, 708 (10th Cir.

1996).2 We held that the determination of such a motion “depends on whether
the conjunctive, and thereafter proven in the disjunctive.” United States v.

Gunter, 546 F.2d 861, 868-69 (10th Cir. 1976).

-3-

there is an adequate factual basis for his guilty plea.” Id. at 709-10.

The factual basis for the guilty plea to which Mr. Corrigan stipulated in his

plea agreement contains the following facts.

On April 4, 1995, the confidential informant went to the

Chateau Motel in Colorado Springs and saw Jason Chavez and Kim

Falkenberg in the room. Jason Chavez purchased two small baggies

of methamphetamine from Corrigan. The confidential informant

purchased 1/8 ounce of methamphetamine from Corrigan, and

observed Corrigan with a .380 pistol in his back pocket during the

transaction.

Rec., vol.I, attach. 2 at 5. 

In Bailey, the Supreme Court held that to satisfy the “use” prong of section

924(c), the evidence must be “sufficient to show an active employment of the

firearm.” 116 S. Ct. at 505. “The active-employment understanding of ‘use’

certainly includes brandishing, displaying, bartering, striking with, and most

obviously, firing or attempting to fire, a firearm.” Id. at 508. The definition does

not include “mere possession of a firearm by a drug offender, at or near the site of

a drug crime.” Id.

We need not decide whether, under this construction, the factual basis for

Mr. Corrigan’s plea established that he “used” the firearm within the meaning of

Bailey by “displaying” it, because Mr. Corrigan was charged with using and
-4-

carrying a firearm during and in relation to a drug trafficking offense. The Court

in Bailey stated that “a firearm can be carried without being used, e.g., when an

offender keeps a gun hidden in his clothing throughout a drug transaction.” Id. at

507. Here, Mr. Corrigan stipulated in his plea bargain that he carried a firearm in

his pocket, visible to view, during a drug sale. These stipulated facts are clearly a

sufficient basis for his plea to the charge of carrying a firearm during and in

relation to a drug offense. Accordingly, Bailey provides no basis for setting his

plea aside. United States v. Holland, No 96-1102, 1997 WL 364290, at n.4 (10th

Cir. July 2, 1997).

We conclude that Mr. Corrigan has failed to demonstrate the denial of a

constitutional right by showing the issues raised in his appeal are debatable

among jurists; that a court could resolve the issues differently; or that the

questions deserve further proceedings. The certificate of appealability is

DENIED and the appeal is DISMISSED. 28 U.S.C. § 2253(c)(2); Lennox v.

Evans, 87 F.3d 431 (10th Cir. 1996). Moreover, because the appeal is frivolous,

we deny leave to proceed on appeal in forma pauperis.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge