The Honorable J. Smith Henley died on October 18, 1997. Judge McMillian 1 andJudge Beam, as the remaining two judges on the panel that heard oral argument, have determined the appeal pursuant to 8th Cir. R. 47E.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2893

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska Donald A. Hellbusch, * * Appellant. *

___________ Submitted: May 25, 1998

Filed: June 30, 1998

___________ Before McMILLIAN, HENLEY and BEAM, Circuit Judges. 1

____________ McMILLIAN, Circuit Judge.
DonaldA. Hellbusch appeals a final order entered in the District Court for the District of Nebraska denying his 28 U.S.C. § 2255 motion to vacate his sentence and withdraw his guilty plea. United States v. Hellbusch , No. 8:CR93-56 (D. Neb.-2-

May 28, 1996). For reversal, appellant argues the district court erred in denying hi s § 2255 motion based on Bailey v. United States , 516 U.S. 137 (1995) ( Bailey ). W e held the appeal in abeyance pending the Supreme Court’s decision in Bous ley v. United States , 118 S. Ct. 1604 (1998) (filed May 18, 1998). F or the reasons discussed below, we reverse and remand the case to the district court for further proceedings consistent with this opinion.
The underl ying facts are not disputed. In February 1993 appellant sol d methamp hetamineto a confidential informant and an undercover officer. Th e undercov er

officer later obtained a search warrant for appellant’s residence. Th e conf idential informant and the undercover officer went to appellant’s residence an d boughtmo re methamphetamine from appellant. Upon a signal from the undercove r offic er, other law enforcement officers entered the residence and executed the search warrant. The officers seized metham phetamine and marijuana, $900 in currency, drug para phernalia, and four handguns, two of which were loaded. The two loade d handguns and the $900 were found in a bedroom. Appellant was arrested in the living room. In May 1993 a federal grand jury in dicted appellant on four counts--distribution of me thamphetamine (count I) and distribution and possession of methamphetamin e with intent to distribute (count II), in violation of 21 U.S.C. § 841(a)(1), using an d carrying a firearm during and in relation to a drug trafficking offense (count III), i n violation o f 18 U.S.C. § 924(c), and unlawful firearms possession (count IV), i n violationof 18 U.S.C. § 922(g). The district court denied appellant’s motion t o suppr ess. Pursuant to a negotiated plea agreement, appellant entered a conditiona l gui ltyplea to counts II and III, and the government agreed to dismiss with prejudic e counts I and IV and to recommend a sentence at the low end of the applicabl e sen tencing guideline range. The government’s evidence would have shown that th e offi cer found the two loaded handguns in the same room as the $900. Appellan t reserved the right to appeal the district court order denying his motion to suppress.-3-

At the plea hearing the district court noted that appella nt had reserved the right to appeal from the denial of the motion to suppress. Defense counsel added, and the distr ict court acknowledged, that appellant also reserved the right to appea l sentenci ng

issues as well. Transcript of plea hearing at 3. The district cour t informed appellant that he would be allowed to withdraw his guilty plea only if the distric t court rejected the plea agreement, if he could show some “just and fair” reason , or if a higher court reversed the denial of the motion to suppress. Id. a t 31-32. The district court accepted the guilty plea and sentenced appellant to a total of 66 months imprisonment (6 months for the drug trafficking count, plus a mandatory consecutive term of 60 months for the § 924 (c) count), 3 years supervised release, and a special assessment of $100. Appellant filed a direct appeal, raisin g suppression

issues but not challenging the validity of his plea. This court affirmed the conviction and sentence. United States v. Hellbusch , 48 F.3d 1225 (8th Cir

. 1995) (per curiam) (table) (opinion filed Mar. 9, 1995). On December 5, 1995, the Supreme Court decided Bailey and rejected the “mere presence, availability or proxi mity” standard previously applied by this court and other circuitc ourts of appeals. The Court held that “use” of a firearm under 18 U.S.C

. § 9 24(c) requires a showing of “active employment,” 516 U.S. at 144, for example , “bran dishing, displaying, bartering, striking with, and, most obviously, firing o r attempting to fire a firearm . . . [ , as well as making] a reference to a firearm calculated tobring about a change in the circumstances of the predicate offense,” id. at 148, and notmerely “storing a weapon near drugs or drug proceeds” or “conceal[ing] a gu n nearby to be at the ready for an imminent confrontation.” Id. at 149.
InFebruary 1996 appellant filed this § 2255 motion to vacate his sentence and wit hdraw his guilty plea, arguing that his sentence on the firearms count is unlawfu l under Bailey . He argued that, in light of Bailey , his plea was not intelligent because he had been misinformed as to the elements of a § 924(c) offense, there was no factua l basis for his guilty plea, and he is factually innoc ent of the § 924(c) offense because theWe note that because appellant pleaded guilty to “using and c arrying” a firearm 2 in violat ion of § 924(c)(1), on remand, he must show that he is factually innocent o f both “usin g” a firearm as defined in Bailey and “carrying” a firearm as defined i n Muscarello v. United States , No. 96-1654, 1998 WL 292058, at *2-10 (U.S. June 8, 1998), in order to establish a “gateway” factual innocence claim. -4- two handguns were merely stored near drug proceeds. The district court held that appellant’s guilty plea had waived all non-jurisdictional challenges, i ncluding any Bailey issue, to his § 924(c) conviction and sentence, slip op. at 7, and deni ed the motion. This appeal followed.
In October 1996 this court held in Bousley v. Brooks that a pet itioner had waived the rig ht to collateral review of Bailey issues by pleading guilty and by failing t o challenge the conviction and sente nce on that ground on direct appeal. 97 F.3d at 287. The Supreme Court granted certiorari to resolve a split among the circuits over th e permi ssibility of post- Bailey collateral attacks on § 924(c)(1) convictions obtaine d pursuant to guilty pleas, Bousley v. United States , 118 S. Ct. 31 (1997), and we held the prese nt appeal in abeyance pending the Supreme Court’s decision in Bousley v

. United States

. On May 18, 1998, the Supreme Court decided Bousley v. United States , holding that a procedurally defaulted claim that a plea was unintelligent because of Bailey error may be cons idered on the merits if the petitioner can show either cause and actua l prejudice or actual innocence. 118 S. Ct. 1610-12. We believe it appropr iate to remand this case to permit the district court to reconsider in light of Bousley v. United State s and Muscarello v. United States , No. 96-1654, 1998 WL 292058 (U.S. June 8, 1998). 2

Ac cordingly, the order of the district court is reversed and the case i s remanded to the district court for further proceedings.-5-

A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.