* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited circumstances

set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-20776

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERT WAYNE CAMERON,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-94-CR-274-1)

_________________________

July 22, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

I.

Pursuant to a plea agreement, Robert Cameron pleaded guilty to

one count of a three-count superseding information stating the

following:

On October 25, 1994, Federal and local officers executed

a Search Warrant at the defendant’s home[.] . . . An ATF

officer went into defendant’s apartment and approached the

defendant in defendant’s bedroom and disarmed the defendant.

Defendant had in his possession, more specifically, behind his
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back, a Norinco, 9mm pistol, loaded with seven rounds.

 After being advised of his constitutional rights, the

defendant verbally waived those rights and claimed the

Norinco and 2 other 9mm Linda model pistols as his own.

These two Linda model pistols were found in the defendant’s bedroom closet along with two more firearms, an

FIE Model “Tex,” .22 caliber revolver, fully loaded with

six rounds and a Glenfield, Model 60, .22 caliber rifle.

Also found in the same closet was approximately four

pounds of Marihuana and ten Valium tablets. In and

around the above-mentioned articles were miscellaneous

boxes of ammunition, boxes of plastic baggies, a detecto

scale, a box of baking soda, and a drug smoking device

known as a “bong.” The defendant stated to the officers

that he was selling drugs to pay bills. The defendant

also stated that the guns were his.

The prosecutor recited an identical version of the factual basis at

Cameron’s plea hearing.

In the presentence report (“PSR”), the probation officer

indicated that, during his arrest, “Cameron was alleged to have

reached behind his back for a pistol in a threatening manner.” The

probation officer indicated that “Cameron denied hiding the weapon

or reaching for the gun in a threatening manner.” There were no

objections to the factual findings in the PSR; the district court

adopted those findings.

At Cameron’s pre-plea detention hearing, the magistrate judge

found that “Mr. Cameron resisted arrest by attempting to draw on

officers from the small of his back, a Norinco automatic pistol

loaded with seven rounds of ammunition in the clip[.]” At

Cameron’s sentencing hearing, the prosecutor referred to the

magistrate judge’s finding when arguing for a relatively stiff

sentence. Cameron’s attorney stated that he was not prepared to

argue the facts at sentencing but added, “There was a dispute
3

between Mr. Cameron’s impression of what happened on the day of his

arrest and the ATF agent’s impression of what occurred on the day

of his arrest.”

II.

Cameron contends that his guilty plea lacked a factual basis

in light of Bailey v. United States, 116 S. Ct. 501 (1995), which

was decided after he entered his plea. The government confesses

error and concedes that it was not harmless. The government also

asks this court to allow it to reinstate the counts that were

dismissed in conjunction with Cameron’s plea agreement.

A district court must satisfy itself that there is a factual

basis for a guilty plea. United States v. Adams, 961 F.2d 505, 508

(5th Cir. 1992). Use of a firearm does not encompass possession of

a firearm or placement of it nearby for future active use. Bailey,

116 S. Ct. at 508-09. See United States v. Garcia, No. 95-20170,

1996 WL 316490, at *7 (5th Cir. June 12, 1996). Bailey applies to

cases pending on direct appeal when it was decided. United States

v. Andrade, 83 F.3d 729, 730 n.1 (5th Cir. 1996) (per curiam).

The factual basis stipulated in the plea agreement and recited

at the plea hearing is inadequate to satisfy the use requirement of

Bailey. Cameron had a firearm behind his back; the factual basis

does not indicate that he brandished, displayed, bartered, fired,

or attempted to fire the weapon or struck anybody with it or used

it for barter. See Bailey, 116 S. Ct. at 508. The mere presence

of the firearm, even if close enough for easy access by Cameron,
4

does not constitute “use.” Id.

It is not evidence, on the record now before us, whether the

firearm was on Cameron’s person or was actually behind him. If the

firearm was in the small of his back, as the magistrate judge

indicated, he could be convicted of carrying a firearm during a

drug-trafficking offense. See United States v. Fike, 82 F.3d 1315,

1328 (5th Cir. 1996).

The lack of a factual basis to support a guilty plea may

constitute harmless error. Adams, 961 F.2d at 512. We may rely on

a PSR to determine that a district court’s error regarding the lack

of a factual basis is harmless. Id. at 512-13.

In Cameron’s case, the PSR indicated that it was alleged that

he attempted to pull the weapon from behind his back, not that he

actually did so. Cameron disputed that allegation. At the

sentencing hearing, he again disputed the prosecutor’s allegation

and magistrate judge’s finding at the detention hearing that he had

attempted to pull the weapon from behind his back. 

The district court made no finding regarding this. Because

the PSR stated the episode in terms of an allegation and not as

fact, Cameron disputed it, and the district court made no factual

finding, we do not rely on the PSR to determine that the Bailey

error regarding use of a firearm was harmless.

Additionally, the evidence on which the magistrate judge

relied to find that Cameron actually attempted to pull the weapon

is not included in the record. Accordingly, we will not rely on

the magistrate judge’s finding to hold that the Bailey error
5

regarding use of a firearm was harmless.

Because there was an inadequate factual basis to support a

guilty plea of using a firearm, because the lack of a factual basis

does not constitute plain error, and because it is uncertain

whether there might be a factual basis to support a guilty plea of

carrying a firearm, we vacate Cameron’s conviction and remand for

further consideration in light of Bailey and Fike. 

Finally, we need not determine now whether the government may

reinstate the counts of the indictment that were dismissed in

conjunction with Cameron’s plea. That issue is not ripe for

review. See Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.), cert.

denied, 115 S. Ct. 189 (1994).

VACATED and REMANDED.