The Honorable J. Smith Henley died on October 18, 1997. Judge McMillian 1

and Judge 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. 

Donald A. 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.
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May 28, 1996). For reversal, appellant argues the district court erred in denying his

§ 2255 motion based on Bailey v. United States, 516 U.S. 137 (1995) (Bailey). We

held the appeal in abeyance pending the Supreme Court’s decision in Bousley v. United

States, 118 S. Ct. 1604 (1998) (filed May 18, 1998). For the reasons discussed below,

we reverse and remand the case to the district court for further proceedings consistent

with this opinion.

The underlying facts are not disputed. In February 1993 appellant sold

methamphetamine to a confidential informant and an undercover officer. The

undercover officer later obtained a search warrant for appellant’s residence. The

confidential informant and the undercover officer went to appellant’s residence and

bought more methamphetamine from appellant. Upon a signal from the undercover

officer, other law enforcement officers entered the residence and executed the search

warrant. The officers seized methamphetamine and marijuana, $900 in currency, drug

paraphernalia, and four handguns, two of which were loaded. The two loaded

handguns and the $900 were found in a bedroom. Appellant was arrested in the living

room. 

In May 1993 a federal grand jury indicted appellant on four counts--distribution

of methamphetamine (count I) and distribution and possession of methamphetamine

with intent to distribute (count II), in violation of 21 U.S.C. § 841(a)(1), using and

carrying a firearm during and in relation to a drug trafficking offense (count III), in

violation of 18 U.S.C. § 924(c), and unlawful firearms possession (count IV), in

violation of 18 U.S.C. § 922(g). The district court denied appellant’s motion to

suppress. Pursuant to a negotiated plea agreement, appellant entered a conditional

guilty plea to counts II and III, and the government agreed to dismiss with prejudice

counts I and IV and to recommend a sentence at the low end of the applicable

sentencing guideline range. The government’s evidence would have shown that the

officer found the two loaded handguns in the same room as the $900. Appellant

reserved the right to appeal the district court order denying his motion to suppress.
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At the plea hearing the district court noted that appellant had reserved the right

to appeal from the denial of the motion to suppress. Defense counsel added, and the

district court acknowledged, that appellant also reserved the right to appeal

sentencing issues as well. Transcript of plea hearing at 3. The district court

informed appellant that he would be allowed to withdraw his guilty plea only if the

district 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. at

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, raising

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 proximity” standard previously applied by this court and other

circuit courts of appeals. The Court held that “use” of a firearm under 18 U.S.C.

§ 924(c) requires a showing of “active employment,” 516 U.S. at 144, for example,

“brandishing, displaying, bartering, striking with, and, most obviously, firing or

attempting to fire a firearm . . . [, as well as making] a reference to a firearm calculated

to bring about a change in the circumstances of the predicate offense,” id. at 148, and

not merely “storing a weapon near drugs or drug proceeds” or “conceal[ing] a gun

nearby to be at the ready for an imminent confrontation.” Id. at 149. 

In February 1996 appellant filed this § 2255 motion to vacate his sentence and

withdraw his guilty plea, arguing that his sentence on the firearms count is unlawful

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 factual

basis for his guilty plea, and he is factually innocent of the § 924(c) offense because the
2We note that because appellant pleaded guilty to “using and carrying” a firearm

in violation of § 924(c)(1), on remand, he must show that he is factually innocent of

both “using” a firearm as defined in Bailey and “carrying” a firearm as defined in

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.

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two handguns were merely stored near drug proceeds. The district court held that

appellant’s guilty plea had waived all non-jurisdictional challenges, including any Bailey

issue, to his § 924(c) conviction and sentence, slip op. at 7, and denied the motion. This

appeal followed. 

In October 1996 this court held in Bousley v. Brooks that a petitioner had waived

the right to collateral review of Bailey issues by pleading guilty and by failing to

challenge the conviction and sentence on that ground on direct appeal. 97 F.3d at 287.

The Supreme Court granted certiorari to resolve a split among the circuits over the

permissibility of post-Bailey collateral attacks on § 924(c)(1) convictions obtained

pursuant to guilty pleas, Bousley v. United States, 118 S. Ct. 31 (1997), and we held

the present 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 considered on the merits if the petitioner can show either cause and actual

prejudice or actual innocence. 118 S. Ct. 1610-12. We believe it appropriate to remand

this case to permit the district court to reconsider in light of Bousley v. United States

and Muscarello v. United States, No. 96-1654, 1998 WL 292058 (U.S. June 8, 1998).2

Accordingly, the order of the district court is reversed and the case is

remanded to the district court for further proceedings.
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A true copy.

 Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.