* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### OCT 20 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DANIEL ROMERO, Defendant-Appellant. No. 96-2270 (D.C. No. CIV-96-92 JP/WWD & CR-92-80 JP) (D.N.M.)



### 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 materiallyassist 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.1 The district court also denied Mr. Romero’s motionfor a certificate of

appealability required by the Antiterrorism and Eff ective Death Penalty Act. We have subsequently held that this requirement does n ot apply to cases filed before the Act’s effective date, April 24, 1996. See United States v. Kunzman , No. 96-1310, 1997 WL 602507, at *3 n.2 (10th Cir. Oct. 1, 1997). The petition in this case was filed on January, 22, 1996, before the Act ’s effective date, and Mr. Romero therefore does not need a certificate of app ealability to proceed with his appeal. -2- Daniel Romero was charged by indictment with one co unt of conspiracy to distribute less than 500 grams of cocaine and less than 50 kilograms of marijuana, one count of possession with intent to distribute l ess than 50 kilograms of marijuana, one count of possession with intent to d istribute less than 500 grams of cocaine, and ten counts of being a felon in unlawfu l possession of a firearm. Pursuant to a plea agreement, Mr. Romero agreed to plead guilty to an information charging him with one count of using an d carrying a firearm during and in relation to a drug trafficking offense, in v iolation of 18 U.S.C. § 924(c)(1). The district court accepted Mr. Romero’s guilty ple a and sentenced him to the mandatory statutory sentence of five years. Mr. Ro mero brought this action for habeas corpus relief, asserting that his conviction under section 924(c)(1) must be vacated under Bailey v. United States , 116 S. Ct. 501(1995). The district court concluded that Mr. Romero’s conviction was unaffect ed by Baileyand denied relief. Mr. Romero appeals and we affirm. 1 The underlying facts are set out in the Presentence Investigation Report,-3-

which Mr. Romero has not challenged. The Report st ates that Mr. Romero, together with his brother and others, arranged withundercover officers to trade two vehicles, eleven firearms, and cash for eight p ounds of marijuana and ten ounces of cocaine. Mr. Romero was present at some of the negotiations and when the trade took place. During the exchange, Mr. Rom ero handed a metal case containing the firearms to his brother, who was sitting in the undercover officer’s van. Mr. Romero now contends his actions do not co nstitute using a firearm during and in relation to a drug trafficking offens e under section 924(c)(1) as construed by the Supreme Court in Bailey

. In Bailey , the Supreme Court rejected the construction of se ction 924(c)(1) used by most circuits, including this one, and held that a conviction for using a firearm in violation of “§924(c)(1) requires evide nce sufficient to show an active employmentof the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offen se.” Bailey , 116 S. Ct. at 505. However, the Court specifically held that “‘use’ ce rtainly includes brandishing, displaying, bartering , striking with, and most obviously, firing or atte mpting to fire, a firearm.” Id. at 508 (emphasis added). Under the Court’s interp retation, “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 fir earm without handling it.” Id. at 507. See Smith v. United States , 508 U.S. 223, 238-39 (1993).-4-

Mr. Romero does not and could not contend that bart ering is not “using” within the meaning of the section after Bailey . He argues instead that his guilty plea must be set aside because his conduct did not amount to bartering. The Supreme Court has held that [a] guilty plea “is more than a confession which ad mits that the accused did various acts.” It is an “admission that he committed the crime charged against him.” By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime. United States v. Broce , 488 U.S. 563, 570 (1989) (citations omitted). An exception to the rule barring a collateral challeng e to a guilty plea exists when a defendant claims his conviction is unconstitutional because the facts to which he pled guilty have subsequently been determined not t o be criminal. See United States v. Bernhardt , 93 F.3d 706, 708 (10th Cir. 1996). In such a cas e, we inquire whether the plea was supported by an adequate factu al basis, bearing in mind that the acceptance of the plea is deemed a finding thatthe factual basis is adequate and that our review is therefore under the clearly erroneous standard. Id. at 709-
10. Mr. Romero concedes, as he must, that a barter cons titutes “use” both before and after Bailey , and that a barter took place here. He asserts on ly that the record contains no evidence to support his involvem ent in the barter. We disagree. The record shows that Mr. Romero was pre sent at negotiations for the2 A person can be convicted of aiding and abetting t he use of a firearm in

violation of 18 U.S.C. § 924(c). See United States v. Price , 76 F.3d 526, 529 (3d Cir. 1996). Moreover, a person can be convicted of aiding and abetting a substantive offense even if the charging documents do not specifically so plead. See United States v. Dodd , 43 F.3d 759, 762 n.5 (1st Cir. 1995); United Stat es v. Morris , 612 F.2d 483, 495 n.20 (10th Cir. 1979). -5- barter, that he was present at the exchange, and th at he handed the gun case to his brother to hand to the undercover agent. These act s are adequate to support his conviction on the basis of his participation in the barter, either as a principal or as an aider and abettor. 2 Moreover, because Baileydid not change the substantive law holding that barter is “use” under the statute, the Bernhardtexception is not applicable and Mr. Romero’s guilty plea and conviction therefore “ comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” Broce , 488 U.S. at 569. His plea thus admits that his c onduct amounted to participation in the barter and foreclo ses his claim that the facts to which he pled do not constitute an offense under th e statute. We AFFIRM the judgment of the district court.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge