PUBLISH

______

UNITED STATES COURT OF APPEALS

Filed 8/20/96

FOR THE TENTH CIRCUIT

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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.

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Submitted on the briefs:

Thomas D. Barnhardt, Pro Se.

Patrick M. Ryan, United States Attorney, M. Jay Farber, Assistant

United States Attorney, Oklahoma City, Oklahoma.

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BARRETT, Senior Circuit Judge.

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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 therefore ordered

submitted without oral argument.

Thomas D. Barnhardt (Barnhardt), appearing pro se and having

been granted leave to proceed in forma pauperis, appeals the
1 Barnhardt also agreed to the forfeiture of certain

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

2 This is Barnhardt’s second § 2255 motion. On February

19, 1993, Barnhardt filed a § 2255 motion concerning the

retroactive application of U.S.S.G. § 3E1.1 which was denied by

the district court on September 24, 1993. There was no appeal

from that order.

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district court’s Order of March 18, 1996, dismissing his motion to

vacate, set aside or correct sentence filed pursuant to 28 U.S.C.

§ 2255.

On June 14, 1990, Barnhardt waived his right to a jury trial

and pled guilty to possession with intent to distribute

approximately one kilogram of cocaine, in violation of 21 U.S.C. §

841(a)(1) (Count 2); using or carrying a firearm during 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 of racketeering,

in violation of 18 U.S.C. § 1952(a)(3) (Count 9).1 He was

sentenced to 63 months imprisonment on Counts 2 and 9, to run

concurrently, and 60 months imprisonment on Count 3, to run

consecutively. Barnhardt did not file a direct appeal.

On February 2, 1996, Barnhardt filed a motion to vacate, set

aside or correct sentence pursuant to 18 U.S.C. § 2255.2 In his

motion, Barnhardt challenged his conviction and sentence on Count

3, using or carrying a firearm during and in relation to a drugtrafficking crime, in violation of 18 U.S.C. § 924(c)(1). He

argued that he never “used” a firearm within the meaning of §
3 Notwithstanding the dictates of Broce, we note that

“those courts which have addressed Bailey in the context of a

prisoner’s § 2255 motion applied the Bailey analysis to the

petitioner’s conviction, notwithstanding the fact that 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).

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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 Barnhardt’s §

2255 motion, concluding that there was ample evidence on the record

to support his conviction and sentence on Count 3 under the “carry”

prong of § 924(c)(1).

On appeal, Barnhardt contends that the district court erred in

dismissing his § 2255 motion, inasmuch as his plea was involuntary,

and a factual issue remains as to whether he had the 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 Bailey applies 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 from collaterally

attacking a voluntary and intelligent guilty plea.3 However, the

Court noted that an exception to the rule barring collateral attack

on a guilty plea applies when the defendant had “‘the right not to
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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 activity affecting

interstate commerce, in violation of 18 U.S.C. § 371. Id. at 1421.

Following sentencing, Barboa filed a § 2255 motion on the grounds

that his sole coconspirator was a government informant. 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 conviction is

unconstitutional “‘no matter how validly his factual guilt is

established’” if the facts he pled guilty to are subsequently

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 conviction under 28

U.S.C. § 2255.

II. Retroactivity

Next, we must determine whether Bailey has retroactive
4 In United States v. Wacker, 72 F.3d 1453 (10th Cir.

1995), petition for cert. filed, (U.S. June 10, 1996) (No. 95-

9284), we decided that Bailey applied retroactively to cases on

direct review on the date it was decided, December 6, 1995.

5 This decision is supported by our unpublished decision,

United States v. Parker, 1996 WL 202607 (10th Cir. April 26,

1996), wherein we reversed the defendant’s conviction and

sentence under § 924(c)(1) and remanded to the trial court for

further factual determinations.

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application to cases on collateral review.4 The courts which have

addressed this issue have concluded that Bailey applies

retroactively and we now add ourselves to that list.

5 See United

States v. Cota-Loaiza, 1996 WL 403303 (D. Colo. 1996) (citations

omitted). In so doing, the courts have relied on Davis v. United

States, 417 U.S. 333, 346 (1974), wherein the Supreme Court held

that a petitioner collaterally attacking his conviction should be

given the benefit of case law decided after his conviction when the

conviction was “for an act that the law does not make 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 transactions 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 structuring in

which he engaged was unlawful. Ratzlaf v. United States, 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).

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135 (1994). On appeal from the district court’s denial of his §

2255 motion, we concluded that Teague v. Lane, 489 U.S. 288, 296

(1989), which holds that new constitutional rules of criminal

procedure should not be applied retroactively to cases on

collateral review, was distinguishable because Ratzlaf established

a new substantive rule of law rather than a new procedural rule of

law.6 Therefore, we held that Ratzlaf applied retroactively.

Like Ratzlaf, Bailey establishes a new non-constitutional rule

of substantive law which may produce a different result under the

facts of this case than that dictated by prior law. In other

words, actions that were criminal pre-Bailey may no longer be such.

Therefore, we hold that Bailey applies 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 Bailey applies

retroactively, we must now address the application of Bailey in a

case where the defendant pled guilty to a charge that 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
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convicted by a jury of using or carrying a firearm during and in

relation to a drug trafficking offense in violation of § 924(c)(1).

In Miller, we concluded that if (a) the indictment alleged that the

defendant both “used” and “carried” the firearm in question, (b)

the jury was instructed on both the “use” and “carry” prongs of §

924(c)(1), and (c) the “use” instruction was erroneous in light of

Bailey, then the defendant’s conviction under § 924(c)(1) must be

reversed unless the reviewing court is absolutely certain that the

jury convicted solely under the “carry” prong. Id. at 1256-57.

Our “reason for this approach is simple: ‘Jurors are not generally

equipped to determine whether a particular theory of 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 rejecting the evidence

supporting the legally valid one.” Miller, 84 F.3d at 1257. The

only way to remedy the problem is to order a retrial and put the

government to its proof before a properly instructed jury. Id. at

1257.

However, when a defendant pleads guilty the concerns

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.” United States v.

Cota-Loaiza, 1996 WL 403303 (D. Colo. 1996) (citations omitted).

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(1995). Accordingly, the determination of Barnhardt’s motion

depends on whether there is an adequate factual basis for his

guilty plea.7

At Barnhardt’s change of plea hearing, the following exchange

took place between Barnhardt, Mr. Farber (government counsel), and

the court:

MR. FARBER: And as a result of your meeting with

him, you then went to a Holiday Inn located here in the

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 cocaine

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 correct?

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?
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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 that a

factual basis for Barnhardt’s guilty plea existed and 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 factual finding

that there is an adequate factual basis for the plea.” 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 clearly erroneous

standard, Blair, 54 F.3d at 643, and a finding of fact is not

clearly erroneous unless it is without factual support in the

record or, after reviewing all the evidence, we are left with a

definite and firm conviction that a mistake has been 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 employment of the firearm by

the defendant, a use that makes the firearm an operative factor in

relation to the predicated offense.” ___ U.S. at ___, 116 S.Ct. at

505 (emphasis original). “Evidence that the defendant brandished,

displayed, bartered, fired or attempted to fire a firearm, or used
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it to strike another person will support a jury verdict that the

defendant ‘used’ a firearm, as will evidence the defendant 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 the “carry”

prong of § 924(c)(1), it did state that:

[u]nder the interpretation we enunciate today, a firearm

can be used without being carried, e.g., when an offender

has a gun on display during a transaction, or barters

with a firearm without handling it; and a firearm can 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 “use” the

firearm as Bailey defines “use” in terms of § 924(c)(1); there was

no “active employment” of a firearm. However, Barnhardt admitted,

in response to direct questioning from the court, at his change of

plea hearing, that he “carried” the firearm in question tucked into

the back of his pants during the drug transaction, handy in the

event that he might need to use it. This is exactly the type of

situation envisioned by the Supreme Court in Bailey to 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 carrying a firearm

during and in relation to a drug-trafficking crime, in violation of
18 U.S.C. § 924(c)(1), based on the carrying prong.

AFFIRMED.