* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is 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 c ause is therefore ordered submitted without oral argument. Ernest Corrigan was indicted on charges of conspira cy to distribute methamphetamine, distribution of methamphetamine, b eing a felon in possession1 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 o rcarrying a firearm, 93 F.3d at 709, while Mr. Corrigan was c harged with using and carrying a firearm. This difference is not signifi cant. “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 duri ng 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 co nspiracy charge and the section 924(c) charge. After his conviction and se ntencing, 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 convicti on under section 924(c) cannot stand in light of Bailey . The district court denied relief and Mr. Corriga n appeals. We affirm. Mr. Corrigan argues that under Baileythere was no factual basis for his plea of guilty to the section 924(c) charge. 1 We have previously addressed the retroactive application of Baileyin a section 2255 case when, as here, the defendant pled guilty to a charge that he used or c arried 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 whetherthe conjunctive, and thereafter proven in the disju nctive.” United States v.

Gunter , 546 F.2d 861, 868-69 (10th Cir. 1976). -3- there is an adequate factual basis for his guilty p lea.” 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 t o 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 Corriga n, and observed Corrigan with a .380 pistol in his back po cket 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 employmentof the firearm.” 116 S. Ct. at 505. “The active-employme nt understanding of ‘use’ certainly includes brandishing, displaying, barteri ng, 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 Baileyby “displaying” it, because Mr. Corrigan was charg ed with using and-4-

carrying a firearm during and in relation to a drug trafficking offense. The Court in Baileystated that “a firearm can be carried without bein g used, e.g. , when an offender keeps a gun hidden in his clothing through out a drug transaction.” Id. at 507. Here, Mr. Corrigan stipulated in his plea bar gain that he carried a firearm in his pocket, visible to view, during a drug sale. T hese 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 demonst rate the denial of a constitutional right by showing the issues raised i n his appeal are debatable among jurists; that a court could resolve the issue s differently; or that the questions deserve further proceedings. The certifi cate of appealability is DENIED and the appeal is DISMISSED. 28 U.S.C. § 22 53(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 pauperi s.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge