PUBLISH

______

UNITED STATES COURT OF APPEALS Filed 8/20/96 FOR THE TENTH CIRCUIT

______ UNITED STATES OF AMERICA, ) ) Respondent-Appellee, ) ) v. ) No. 96-6127 ) (W. Dist. of Okla.) THOMAS D. BARNHARDT, ) (D.C. No. CIV-96-181-A) ) Petitioner-Appellant. )

______ Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______ Submitted on the briefs: Thomas D. Barnhardt, Pro Se. Patrick M. Ryan, United States Attorney, M. Jay Far ber, Assistant United States Attorney, Oklahoma City, Oklahoma.

______ BARRETT , Senior Circuit Judge.

______ After examining the briefs and the 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); Tenth Cir. R. 34.1.9. The case is t herefore ordered submitted without oral argument. Thomas D. Barnhardt (Barnhardt), appearing pro se and having been granted leave to proceed informa pauperis , appeals the1 Barnhardt also agreed to the forfeiture of certain

personal property pursuant to 21 U.S.C. § 853 (Coun t 10).

2 This is Barnhardt’s second § 2255 motion. On Febru ary 19, 1993, Barnhardt filed a § 2255 motion concernin g the retroactive application of U.S.S.G. § 3E1.1 which w as denied by the district court on September 24, 1993. There wa s no appeal from that order. - 2 - district court’s Order of March 18, 1996, dismissin g his motion to vacate, set aside or correct sentence filed pursuan t to 28 U.S.C. § 2255. On June 14, 1990, Barnhardt waived his right to a j ury trial and pled guilty to possession with intent to distri bute approximately one kilogram of cocaine, in violationof 21 U.S.C. § 841(a)(1) (Count 2); using or carrying a firearm du ring and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and interstate travel in aid o f racketeering, in violation of 18 U.S.C. § 1952(a)(3) (Count 9). 1 He was sentenced to 63 months imprisonment on Counts 2 and9, to run concurrently, and 60 months imprisonment on Count 3 , to run consecutively. Barnhardt did not file a direct app eal. On February 2, 1996, Barnhardt filed a motion to va cate, set aside or correct sentence pursuant to 18 U.S.C. § 2 255. 2 In his motion, Barnhardt challenged his conviction and sen tence on Count 3, using or carrying a firearm during and in relati on to a drugtrafficking crime, in violation of 18 U.S.C. § 924( c)(1). He argued that he never “used” a firearm within the me aning of §3 Notwithstanding the dictates of Broce , we note that

“those courts which have addressed Baileyin the context of a prisoner’s § 2255 motion applied the Baileyanalysis to the petitioner’s conviction, notwithstanding the fact t hat the petitioner had pled guilty to a violation of 18 U.S .C. § 924(c)(1).” United States v. Fletcher , 919 F. Supp. 384, 387 (D. Kan. 1996) (citations omitted). - 3 - 924(c)(1) as defined in Bailey v. United States , ___ U.S. ___, 116 S.Ct. 501 (1995). On March 18, 1996, the district court dismissed Bar nhardt’s § 2255 motion, concluding that there was ample eviden ce on the record to support his conviction and sentence on Count 3 u nder the “carry” prong of § 924(c)(1). On appeal, Barnhardt contends that the district cou rt erred in dismissing his § 2255 motion, inasmuch as his plea was involuntary, and a factual issue remains as to whether he had th e firearm on his person at the time the offense was committed. As a threshold matter, we must determine whether (1 ) Barnhardt waived his right to challenge the factual basis of his plea by pleading guilty, and (2) whether Baileyapplies retroactively to allow relief in collateral proceedings under 28 U.S .C. § 2255. I. Waiver In United States v. Broce , 488 U.S. 563, 565 (1989), the Supreme Court held that a defendant is precluded fr om collaterally attacking a voluntary and intelligent guilty plea. 3However, the Court noted that an exception to the rule barring c ollateral attack on a guilty plea applies when the defendant had “‘t he right not to- 4 -

be haled into court at all upon the felony charge.’ ” Id . at 574-75 (quoting Blackledge v. Perry , 417 U.S. 21, 30 (1974)). In United States v. Barboa , 777 F.2d 1420 (10th Cir. 1985), we followed Blackledge . Barboa pled guilty to conspiracy to damage and destroy by explosives a building used in an act ivity affecting interstate commerce, in violation of 18 U.S.C. § 37 1. Id . at 1421. Following sentencing, Barboa filed a § 2255 motion on the grounds that his sole coconspirator was a government inform ant. Id . at 1422. On appeal, we rejected the government’s argument that Barboa’s guilty plea served as an admission that he committed the crime of conspiracy. Id . at 1423 n.3. We held that a plea of guilty does not bar a claim that the defendant’s co nviction is unconstitutional “‘no matter how validly his factua l guilt is established’” if the facts he pled guilty to are su bsequently determined not to be criminal. Id . (quoting Menna v. New York , 423 U.S. 61, 63 n.2 (1975)). Here, the facts are analogous to those in Barboa . Barnhardt argues that he did not “use” a firearm under § 924( c)(1) as defined by Bailey , i.e., that the factual basis for his guilty plea does not constitute a crime under § 924(c)(1) and Bailey . Therefore, we hold that he may attack the validity of his convict ion under 28 U.S.C. § 2255. II. Retroactivity Next, we must determine whether Baileyhas retroactive4 In United States v. Wacker , 72 F.3d 1453 (10th Cir.

1995), petitionfor cert . filed , (U.S. June 10, 1996) (No. 95- 9284), we decided that Baileyapplied retroactively to cases on direct review on the date it was decided, December 6, 1995.

5 This decision is supported by our unpublished decis ion, United States v. Parker , 1996 WL 202607 (10th Cir. April 26, 1996), wherein we reversed the defendant’s convicti on and sentence under § 924(c)(1) and remanded to the tria l court for further factual determinations. - 5 - application to cases on collateral review. 4 The courts which have addressed this issue have concluded that Baileyapplies retroactively and we now add ourselves to that list

. 5See United States v. Cota-Loaiza , 1996 WL 403303 (D. Colo. 1996) (citations omitted). In so doing, the courts have relied on D avis v. United
States , 417 U.S. 333, 346 (1974), wherein the Supreme Cou rt held that a petitioner collaterally attacking his convic tion should be given the benefit of case law decided after his con viction when the conviction was “for an act that the law does not ma ke criminal.” In United States v. Dashney , 52 F.3d 298 (10th Cir. 1995), we applied Davis and held that substantive changes in the law, as opposed to procedural changes, apply retroactively. In Dashney , the defendant was convicted in 1990 of violating 31 U.S.C. §§ 5322(a) and 5324(3) by structuring cash transaction s in order to evade currency reporting requirements. Id . at 298. In 1994, the Supreme Court held that a conviction under 31 U.S.C . §§ 5322(a) and 5324(3) required that the defendant know that the s tructuring in which he engaged was unlawful. Ratzlaf v. United S tates , 510 U.S.6 For a very thorough discussion of retroactivity,

Teague , and Bailey , see Sanabria v. United States , 916 F. Supp. 106 (D. Puerto Rico 1996). - 6 - 135 (1994). On appeal from the district court’s de nial of his § 2255 motion, we concluded that Teague v. Lane , 489 U.S. 288, 296 (1989), which holds that new constitutional rules o f criminal procedure should not be applied retroactively to ca ses on collateral review, was distinguishable because Ratz laf established a new substantive rule of law rather than a new pro cedural rule of law. 6Therefore, we held that Ratzlaf applied retroactively. Like Ratzlaf , Baileyestablishes a new non-constitutional rule of substantive law which may produce a different re sult under the facts of this case than that dictated by prior law. In other words, actions that were criminal pre-Baileymay no longer be such. Therefore, we hold that Baileyapplies retroactively to convictions under 18 U.S.C. § 924(c)(1). III. Bailey Having concluded that Barnhardt has not waived his right to challenge his conviction under § 2255 and that Bail eyapplies retroactively, we must now address the application of Baileyin a case where the defendant pled guilty to a charge th at he used or carried a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). In United States v. Miller , 84 F.3d 1244, 1257 (10th Cir. 1996), we discussed Bailey ’s application where a defendant was- 7 -

convicted by a jury of using or carrying a firearm during and in relation to a drug trafficking offense in violationof § 924(c)(1). In Miller , we concluded that if (a) the indictment alleged t hat the defendant both “used” and “carried” the firearm in question, (b) the jury was instructed on both the “use” and “carr y” prongs of § 924(c)(1), and (c) the “use” instruction was errone ous in light of Bailey , then the defendant’s conviction under § 924(c)(1) must be reversed unless the reviewing court is absolutely c ertain that the jury convicted solely under the “carry” prong. Id . at 1256-57. Our “reason for this approach is simple: ‘Jurors ar e not generally equipped to determine whether a particular theory o f conviction submitted to them is contrary to law,’ Griffin [v. United States] , 502 U.S. [46, 59 (1991)], and may have intended to convict the defendant on a legally invalid ground, while reject ing the evidence supporting the legally valid one.” Miller , 84 F.3d at 1257. The only way to remedy the problem is to order a retria l and put the government to its proof before a properly instructe d jury. Id . at 1257. However, when a defendant pleads guilty the concern s underlying our decision in Miller are not implicated. When a defendant pleads guilty, it is necessary only that the court “mak[e] such inquiry as shall satisfy it that there is a factual basis for the plea.” Fed. R. Crim. P. 11(f). See United States v. Blair , 54 F.3d 639, 643 (10th Cir.), cert . denied , ___ U.S. ___7 This conclusion is supported by the “overwhelming

weight of authority from other jurisdictions.” Uni ted States v. Cota-Loaiza , 1996 WL 403303 (D. Colo. 1996) (citations omitted ). - 8 - (1995). Accordingly, the determination of Barnhard t’s motion depends on whether there is an adequate factual bas is for his guilty plea. 7 At Barnhardt’s change of plea hearing, the followin g exchange took place between Barnhardt, Mr. Farber (governmen t counsel), and the court: MR. FARBER: And as a result of your meeting with him, you then went to a Holiday Inn located here inthe Oklahoma City area and you -- well, you purchased approximately a kilo [of] cocaine. DEFENDANT BARNHARDT: Yes, sir. MR. FARBER: Correct? And you had possession of that cocaine? DEFENDANT BARNHARDT: Yes, sir. MR. FARBER: Okay. And you at a later point in time, I imagine, were going to redistribute that co caine and earn a profit, correct? DEFENDANT BARNHARDT: Yes, sir. MR. FARBER: Okay. And at the time of your arrest there was a firearm, a .38 caliber revolver, found tucked down I believe the back of you pants, is that corre ct? DEFENDANT BARNHARDT: Yes, sir. MR. FARBER: Okay. And you used that firearm, again, in relation to the purchase of the narcotics that you had just undertaken, correct? THE COURT: Well, do you mean use it or carried it in the event you might have to use it?- 9 - DEFENDANT BARNHARDT: Carried it. MR. FARBER: You had it for [a] reason, in case something occurred that you would need to use that gun to protect yourself, protect you money or whatever? DEFENDANT BARNHARDT: Yes, sir. (Tr. Guilty Plea at 35-36). Based on his statements, the district court found t hat a factual basis for Barnhardt’s guilty plea existed a nd that his plea was made voluntarily, with a full understanding of the charges and consequences. Id . at 36. “The acceptance of a guilty plea is deemed a factua l finding that there is an adequate factual basis for the ple a.” Blair , 54 F.3d at 643 (quoting United States v. Adams , 961 F.2d 505, 509 (5th Cir. 1992)). Therefore, our review is under the cl early erroneous standard, Blair , 54 F.3d at 643, and a finding of fact is not clearly erroneous unless it is without factual supp ort in the record or, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has bee n made. Exxon Corp. v. Gann , 21 F.3d 1002, 1005 (10th Cir. 1994). In Bailey , the Supreme Court held that “§ 924(c)(1) requires evidence sufficient to show an active employmentof the firearm by the defendant, a use that makes the firearm an oper ative factor in relation to the predicated offense.” ___ U.S. at ___, 116 S.Ct. at 505 (emphasis original). “Evidence that the defend ant brandished, displayed, bartered, fired or attempted to fire a f irearm, or used- 10 -

it to strike another person will support a jury ver dict that the defendant ‘used’ a firearm, as will evidence the de fendant made ‘a reference to a firearm calculated to bring about a change in the circumstances of the predicate offense.’” Miller , 84 F.3d at 1256 (quoting Bailey , ___ U.S. at ___, 116 S.Ct. at 508). Inasmuch as the Court did not specifically define t he “carry” prong of § 924(c)(1), it did state that: [u]nder the interpretation we enunciate today, a fi rearm can be used without being carried, e.g., when an of fender has a gun on display during a transaction, or barte rs with a firearm without handling it; and a firearm c an be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction. Bailey , ___ U.S. at ___, 116 S.Ct. at 507. In this case, it is clear that Barnhardt did not “u se” the firearm as Baileydefines “use” in terms of § 924(c)(1); there was no “active employment” of a firearm. However, Barn hardt admitted, in response to direct questioning from the court, a t his change of plea hearing, that he “carried” the firearm in ques tion tucked into the back of his pants during the drug transaction, handy in the event that he might need to use it. This is exactl y the type of situation envisioned by the Supreme Court in Baileyto distinguish “use” from “carry” under § 924(c)(1). Therefore, we hold that the district court did not err in upholding Barnhardt’s conviction for using or carry ing a firearm during and in relation to a drug-trafficking crime, in violation of18 U.S.C. § 924(c)(1), based on the carrying prong.

AFFIRMED.