*This order and judgment is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. UNITED STATES COURT OF APPEALS Filed 10/4/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAWRENCE CHRIS MARRON, Defendant - Appellant. No. 96-1112 (D.C. No. 95-S-3216) (District of Colorado)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY and LUCERO , Circuit Judges.

In May 1994, approximately a year-and-a-half before the Supreme Court decided Bailey v. United States , 116 S. Ct. 501 (1995), Lawrence Chris Marron pleaded guilty to attempted cultivation of marijuan a plants, 21 U.S.C. §§ 846, 841, and use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). After negotiating a plea barga in in which he provided the government substantial assistance, Marron was sente nced to three months-2-

imprisonment on the drug count and 60 months on the firearm count. Because of his continuing cooperation, the 60 month firearm se ntence was later reduced to 45 months. After the Supreme Court’s decision in Bail ey , Marron filed a motion under 28 U.S.C. § 2255 to vacate his sentence on th e firearms count. The district court denied the motion and Marron appealed. We re verse the district court’s judgment and remand for resentencing.
BACKGROUND In 1993, Defendant Marron attempted to cultivate mo re than 50 marijuana plants in a trailer located in Logan County, Colora do. In February 1993, an undercover government informant met with Marron at premises under Marron’s control and observed a firearm and growing marijuan a plants. In April of the same year, Marron told an undercover ATF agent thathe had a firearm “in order to protect the marijuana grow operation because the marijuana plants are valuable and that kind of thing.” ROA, Vol. 2, Tr. at 13. The ATF agent, however, never saw a firearm. Id . Finally, in August 1993, a search warrant was ex ecuted on Marron’s property. Searching officers recovered a firearm as well as a number of marijuana plants. Id . at 14. The criminal charges followed. At his plea hearing, Marron pleaded guilty to the d rug offense but had reservations about pleading guilty to using or carrying a firearm in relation to his drug offense. The district judge recessed overnigh t. After consulting with his-3-

attorney Marron entered a guilty plea on both count s. The base offense level for the marijuana cultivation was calculated to be 20, USSG § 2D1.1(12), and was reduced by three levels for Marron’s acceptance of responsibility, USSG § 3E1.1(b). Based on his specific offender character istics, the guideline range for Marron’s drug offense was 24-30 months. The firear ms count required a statutorily mandated sentence of 60 months, running consecutively with his sentence on the drug count. At Marron’s sentencing hearing, the government info rmed the court that it planned to file a USSG § 5K1.1 motion to reduce the sentence because of Marron’s cooperation. The parties’ stated goal was to reduce the total minimum sentence of 84 months by 25%, to 63 months. Becaus e the government anticipated administrative difficulties in reducing the § 924(c)(1) count by means of a § 5K1.1 motion, the district court acceded to the prosecution’s request that the drug count be reduced to three months, to be se rved consecutively with the unchanged firearm sentence of 60 months. ROA, Vol. 1, Tab 9 at 2. The government later filed a second § 5K1.1 motion and Marron’s sentence was further reduced by 15 months. ROA Vol. 1, Tab 13. At the end of May 1994, Marron began serving his sentence. Id

. Shortly after the Supreme Court decided Bailey in December 1995, Marron filed a motion to vacate his sentence under 28 U.S. C. § 2255. The district court-4-

denied the motion, finding sufficient facts in the record to conclude that Marron “displayed” a firearm to the government informant i n February 1993, and “mentioned” his firearm to an ATF agent in April 19 93. Based on these facts, the district court concluded that Marron “used” a firea rm within the meaning of Bailey , and that a factual basis supported Marron’s plea on the firearm count. ROA Vol. 1, Tab 14 at 3-4. Marron timely appealed.
DISCUSSION A guilty plea must be vacated if there is no factua l basis to accept it. United States v. Keiswetter , 866 F.2d 1301, 1302 (10th Cir. 1989) (en banc); F ed. R. Crim. P. 11(f). The acceptance of a guilty plea is a factual finding that we review for clear error. United States v. Barnhardt , 93 F.3d 706, 710 (10th Cir. 1996). A finding of fact is not erroneous unless i t lacks factual support in the record or, after reviewing all the evidence, we are left “with the definite and firm conviction that a mistake has been committed.” Exx on Corp. V. Gann , 21 F.3d 1002, 1005 (10th Cir. 1994) (quoting Stegall v. Little Johnson Ass’n , 966 F.2d 1043, 1048 (10th Cir. 1993)). Marron’s firearm conviction under 18 U.S.C. § 924(c )(1) imposes a five year minimum term of imprisonment upon a person who “during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm.” In Bailey , the Supreme Court held that “use” as articulated in § 924(c)(1) means an-5-

“active employment” of the firearm--or, in other wo rds, “a use that makes the firearm an operative factor in relation to the pred icate offense.” 116 S. Ct. at 508. This court has recently held that Bailey affected a change in substantive law, and may be applied retroactively to challenge a guilty plea under 28 U.S.C. § 2255. Barnhardt , 93 F.3d at 708-09. The question before us, then, is whether the facts established pursuant to the guilty plea are s ufficient to support the conclusion that Marron “used” a gun as defined by B ailey

. The BaileyCourt’s interpretation of § 924(c)(1) drew in parton a dissent by Judge Williams of the District of Columbia Circu it, in which “[h]e explained his understanding that ‘use’ under § 924(c)(1) deno ted active employment of the firearm ‘rather than possession with a contingent i ntent to use.’” Id . at 505 (quoting United States v. Bailey , 36 F.3d 106, 121 (D.C. Cir. 1994) (en banc) (Williams, J., dissenting)). Active employment inc ludes “brandishing” or “displaying” the weapon. Id . at 508. Likewise, “a reference to the firearm calculated to bring about a change in the circumsta nces of the predicate offense is a ‘use,’ just as the silent but obvious and forcefu l presence of a gun on a table can be a ‘use.’” Id . “Even an offender’s reference to a firearm in hi s possession could satisfy § 924(c)(1).” Id . In contrast, merely possessing a firearm within the proximity of drugs to embolden or protect the offen der is not an active employment; that the offender intends for a firearm to be used later if necessary-6-

cannot be taken to mean that the firearm is then be ing actively employed. Id

. The broad definition of “use” adopted by some lowercourts would entirely subsume the “carry” element of § 924(c)(1). Id . at 507. In Bailey itself, the Court reversed two “use”-based convictions: in the first, the defendant’s gun was locked in the trunk of the car he was driving; in t he second, the gun was found with drugs and money in a locked trunk in the close t of her apartment. The court remanded the cases to determine whether the defenda nts violated the “carry” prong. Id . at 509. In denying Marron’s § 2255 motion, the district cou rt did not find any evidence to support a finding that Marron “carried” a firearm in relation to his marijuana cultivation. Rather, the court found tha t Marron “used” a firearm, that is he “actively employed” it, first by “brandishing ” the firearm, and second by “mentioning” it. ROA, Vol. 1. Tab 14 at 3-4. Acco rding to the district court, Marron “brandished” the firearm when the governmentinformant observed the weapon on Marron’s premises. Id . at 3. While brandishing a firearm certainly is active employment within the meaning of Bailey , there is no evidence in the record to support the district court’s finding. “B randish” does not encompass mere observation, but is defined as “(1) to shake o r wave (a weapon) menacingly; (2) to exhibit or expose in an ostentatious, shamel ess or aggresive manner.” Webster’s Third New Int’l Dictionary 268 (1961); see also United States v.-7-

Roberts , 898 F.2d 1465, 1469 (10th Cir. 1990) (noting thatthe Sentencing Guidelines, USSG § 1B1.1, comment. n. 1(c), define “brandish” to mean that “the weapon was pointed or waved about, or displayed in a threatening manner”). No evidence in the record supports the district court’ s finding that Marron ever brandished a firearm. The record only reflects that the informant “observed” a firearm. Consistent with the term “brandish,” Bail eyrequires some subjective intent by the defendant to make the observer aware of the firearm; there is no evidence in this record that Marron intended the in formant to observe the firearm. The finding is clearly erroneous. We also conclude that Marron did not actively emplo y a firearm when he told the ATF agent that he had “firearms to protect[his] marijuana grow operation.” There is no evidence that Marron had afirearm in his actual or constructive possession when he made the statement, and the ATF agent never observed a firearm during the encounter. While the Court in Bailey noted that “even an offender’s reference to a firearm in his p ossession” could amount to active employment, 116 S. Ct. at 508, it does not f ollow that a defendant’s reference to an inchoate firearm, one admittedly no t in his possession, can be “active employment.” Marron’s statement to the und ercover agent cannot fairly be read as calculated to bring about a change in th e circumstances of the predicate offense--the attempted cultivation of marijuana pla nts. The government has-8-

pointed us to no case, and we have been unable to f ind any, in which the defendant was found to have “used” a firearm within the meaning of § 924(c)(1) by referring to a firearm not in the defendant’s po ssession and not observed by defendant’s audience. Although Bailey downplayed the elements of accessibility and proximity of the firearm, 116 S. Ct. at 508, we do not construe defendant’s actual or constructive possession of a firearm to b e read out of the offense entirely. We conclude that Marron’s isolated ref erence to a firearm was not the active employment required by Bailey to satisfy the “use” element of § 924(c)(1). Finally, the recovery of a firearm in proximity to marijuana plants does not imply that the firearm was used within the meaning given the term by Bailey . See Id . at 508 (“A defendant cannot be charged under § 92 4(c)(1) merely for storing a weapon near drugs or drug proceeds.”); see also United States v. Wacker , 72 F.3d 1453, 1464 (10th Cir. 1995) (reversing § 924(c)(1) convictions in light of Bailey where only evidence of use involved finding guns in camper shell of truck and in a file cabinet in house used in drug dealing). We conclude that the district court clearly erred w hen it found a factual basis for Marron’s plea on the § 924(c)(1) count, a nd therefore remand the case with instructions to vacate that portion of Marron’ s sentence. It appears from the record, however, that the plea agreement, in which Marron received only three months for the marijuana cultivation count, was pre mised on the understanding-9-

that the bulk of Marron’s sentence would be attribu ted to the firearm count. Given the unique circumstances of this case it is appropriate to vacate the entire plea agreement and allow the district court to rese ntence Marron on the drug cultivation count. Cf. United States v. Hawley , 93 F.3d 682, 692-94 (10th Cir. 1996) (plea agreements governed by contract princip les, and enforceability depends on parties’ understanding of the bargain). We note also that Marron has served 27 months of his sentence. Given that the t op of the guideline range for Marron’s adjusted offense level on the drug count w as calculated to be 30 months, and that Marron has provided substantial as sistance to the government (resulting in two USSG § 5K1.1 motions), it is prob able that Marron is entitled to immediate release from custody.
CONCLUSION
We REVERSE the judgment of the district court and REMAND the case to the district court with instructions to resenten ce the defendant expeditiously consistent with this foregoing order and judgment. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge