1The Honorable John B. Jones, United States District Judge for the District of

South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3118

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Arnold F. Hohn,

Appellant,

v.

United States of America,

Appellee.

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Appeal from the United States

District Court for the 

District of Nebraska.

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Submitted: June 15, 1999

 Filed: October 5, 1999

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Before HANSEN and MAGILL, Circuit Judges, and JONES,1 District Judge. 

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HANSEN, Circuit Judge.

Arnold F. Hohn appeals the denial of his motion to vacate, set aside, or correct

his sentence pursuant to 28 U.S.C. § 2255. Initially, we denied a certificate of

appealability, see Hohn v. United States, 99 F.3d 892 (8th Cir. 1996) (vacated), but

the Supreme Court vacated our decision and remanded to this court for further

consideration. See Hohn v. United States, 118 S. Ct. 1969, 1978 (1998). We now
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remand to the district court for a determination of whether Hohn has demonstrated a

"gateway" factual innocence claim. Schlup v. Delo, 513 U.S. 298, 316 (1995).

I. 

A federal jury found Hohn guilty of all counts of an indictment alleging a number

of drug-related offenses, including one count of using or carrying a firearm during and

in relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1). In July 1992, the

trial court sentenced Hohn to a 90-month term of incarceration. On direct appeal, we

affirmed his convictions. See United States v. Hohn, 8 F.3d 1301, 1307 (8th Cir.

1993). Hohn's direct appeal did not challenge the section 924(c)(1) conviction or jury

instructions related to that offense. At the time of his trial and direct appeal, this circuit

(and others) had broadly interpreted the term "use," allowing the firearm's mere

"presence and availability in light of the evident need" to demonstrate the use of a

firearm. United States v. Matra, 841 F.2d 837, 842 (8th Cir. 1988) (internal quotation

omitted) (abrogated). 

In 1995, the United States Supreme Court effectively abrogated our

interpretation of the term "use" when it concluded that the mere possession of a firearm,

or the proximity or accessibility of a firearm to drugs or drug proceeds are insufficient

grounds on which to sustain a conviction for "use" of a firearm under 18 U.S.C. §

924(c). See Bailey v. United States, 516 U.S. 137, 143-44 (1995) (holding that "use"

requires "active employment of the firearm"). In Hohn's case, there was no evidence

that Hohn had engaged in "active employment of the firearm" as Bailey requires. 516

U.S. at 144. Similarly, the instruction on "use" used at Hohn's trial, although consistent

with then-existing circuit precedent, is inconsistent with the standard as interpreted by

the Supreme Court in Bailey, because it allowed the jury to find Hohn guilty if the

evidence showed that he had a firearm available to aid the commission of the drug

crime. (See Appellant's App. at 108.) Relying on the principles announced in Bailey,

Hohn filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §
2We decline to address Hohn's claim that he can demonstrate cause and prejudice

for his default, because he asserts this for the first time in his reply brief. See United

States v. Deering, 179 F.3d 592, 597 (8th Cir. 1999) (noting this court need not address

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2255. The district court denied his motion, concluding that Hohn's failure to preserve

any error on the section 924(c) count or the corresponding jury instructions at trial

amounted to a waiver of the claim. 

We initially denied Hohn a certificate of appealability, concluding that he had not

stated a constitutional violation but a mere claim to a statutory right. See Hohn, 99

F.3d at 893 (vacated). The Supreme Court vacated that opinion, however, after the

government conceded that Hohn's claim is constitutional in nature. The Supreme Court

then remanded the case to this court for further consideration. Hohn, 118 S. Ct. at

1972, 1978. We now consider Hohn's claim.

II. 

The district court dismissed Hohn's section 2255 motion, concluding that Hohn

waived his Bailey claim by not raising it on direct appeal. Hohn argues that the district

court erroneously dismissed his claim as waived, but he correctly acknowledges that

his failure to raise the Bailey issue was a procedural default. See Swedzinski v. United

States, 160 F.3d 498, 500 (8th Cir. 1998), petition for cert. filed, (U.S. June 1, 1999)

(No. 98-9670). 

A procedural default may be excused "if the defendant can first demonstrate

either cause and actual prejudice, or that he is actually innocent." Bousley v. United

States, 118 S. Ct. 1604, 1611 (1998) (internal quotations and citations omitted); see

also Murray v. Carrier, 477 U.S. 478, 485, 496 (1986). Hohn asserts that his

procedural default should be excused because he is actually innocent of the section

924(c) offense.2 "To establish actual innocence, petitioner must demonstrate that, in
an argument made for the first time in a reply brief), petition for cert. filed, (U.S. Sept.

1, 1999) (No. 99-6152). 

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light of all the evidence, it is more likely than not that no reasonable juror would have

convicted him." Bousley, 118 S. Ct. at 1611 (internal quotations omitted); accord,

Schlup, 513 U.S. at 327-28. The district court denied Hohn's motion on the basis of

waiver and therefore did not consider whether Hohn had demonstrated actual innocence

to excuse his default. 

Hohn first contends, and the government concedes, that there was no evidence

to demonstrate that Hohn "used" a firearm within the meaning ascribed to the term by

the Supreme Court in Bailey, which requires the government to show "active

employment" of the firearm. 516 U.S. at 144. Thus, Hohn is actually innocent of

"using" a firearm during and in relation to a drug trafficking offense.

The instructions in this case also gave the jury the option of finding Hohn guilty

of carrying a firearm during and in relation to a drug trafficking offense, and Hohn

asserts that he is actually innocent of the "carry" prong of the offense as well. In the

section 924(c) context, the term "carry" is used in its primary sense, which includes

conveying an article in a vehicle or bearing an article upon one's person or clothing.

See Muscarello v. United States, 118 S. Ct. 1911, 1914-15 (1998); see also,

Swedzinski, 160 F.3d at 501. "In all of the cases in which we have upheld convictions

for carrying guns during or in relation to a drug-trafficking offense, the defendant has

had the weapon either in a car's hatchback, in the passenger compartment of a car, or

on his person, and was thus carrying the offending weapons in an obvious, literal way."

United States v. McKinney, 120 F.3d 132, 133 (8th Cir. 1997). 

Hohn contends that the record indicates he is factually innocent of carrying a

firearm during and in relation to the offense, while the government contends that the

conviction is sustainable because the record sufficiently raises a reasonable inference
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that Hohn carried a firearm. Among other things, the record in this case includes

testimony of officers indicating that Hohn was arrested in his living room with one gram

of methamphetamine in his wallet. He was not carrying a firearm on his person and

no firearms were found in the living room. In his kitchen, officers found 15.8 grams

of methamphetamine on the counter within one foot of three loaded pistols, two of

which were in holsters. (Appellant's App. at 10-15.) In Hohn's bedroom, officers

found another gun in a holster on top of a dresser near a sum of money. (Appellant's

App. at 20.) Hohn argues that any inference that he carried the firearms into the house

when he was observed by surveillance officers shortly before his arrest or during a drug

crime is unreasonable because other people had access to his house and the government

introduced no fingerprint evidence. 

A determination of whether no reasonable juror could have convicted Hohn on

the "carry" prong of the offense turns upon an examination of the whole record to

ascertain what inferences are reasonable in light of the evidence presented. The district

court dismissed this case on the basis of waiver in 1996 without the benefit of the

Supreme Court's guidance in Bousley and Muscarello, and the parties have not yet had

the opportunity to present the issue of factual innocence to the district court. Therefore,

we believe it is appropriate to remand this case to permit the district court, in the first

instance, to engage in the fact-bound analysis of whether Hohn is factually innocent

of carrying a firearm during or in relation to a drug trafficking offense, in order to open

the gateway for the consideration of his defaulted Bailey claim.

III.

Accordingly, we reverse the district court's dismissal of Hohn's section 2255

motion and remand to the district court for further proceedings consistent with this

opinion. 
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A true copy.

Attest:

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