*This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of Tenth Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 8/23/96

FOR THE TENTH CIRCUIT

______

UNITED STATES OF AMERICA, )

)

Respondent-Appellee, )

)

v. ) No. 96-3149

) (D.C. No. 96-3083-FGT)

ANTONIO RAYFORD, aka Tom Tom, ) (Dist. of Kan.)

)

Petitioner-Appellant. )

______

ORDER AND JUDGMENT*

______

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______

After examining the briefs and the appellate record, this

panel has determined unanimously that oral argument would not

materially assist the determination of this appeal. See Fed. R.

App. P. 34(a); Tenth Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Antonio M. Rayford (Rayford), appearing pro se and having been

granted leave to proceed in forma pauperis, appeals from the

district court’s order of April 5, 1996, denying his Motion to

Vacate, Set Aside, or Correct sentenced filed pursuant 18 U.S.C. §

2255.

On June 2, 1994, Rayford was indicted in an eleven count
- 2 -

indictment by a grand jury in Wichita, Kansas. On May 5, 1995,

Rayford pled guilty to Count 7, using or carrying a firearm during

and in relation to a drug trafficking offense, in violation of 18

U.S.C. § 924(c)(1). He was sentenced to sixty months imprisonment

followed by three years of supervised release.

On February 14, 1996, Rayford filed this motion to vacate, set

aside, or correct sentence pursuant to 18 U.S.C. § 2255 based on

the Supreme Court’s decision in Bailey v. United States, ___ U.S.

___, 116 S.Ct. 501 (1995). The district court denied Rayford’s

motion on the grounds that the factual basis for his guilty plea

established that he negotiated a trade involving 7.5 grams of crack

cocaine for two 9mm semi-automatic handguns and bartering a firearm

constitutes “use” under § 924(c)(1).

On appeal, Rayford argues that the district court erred in

denying his § 2255 motion because he did not “carry” a firearm

within the meaning of § 924(c)(1). Rayford contends that since he

was arrested before he took possession of the handguns and the

handguns remained in the possession of the undercover police

officer, the handguns were not available for his immediate use nor

were they on his person; therefore, he did not “carry” them under

§ 924(c)(1).

In United States v. Barnhardt, 1996 WL ______, at *__ (10th

Cir. 1996), we held that a defendant did not waive his right to

challenge his conviction under § 2255 by pleading guilty and that
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Bailey applied retroactively to cases on collateral review. In so

doing, we recognized that “[w]hen a defendant pleads guilty, it is

necessary only that the court ‘mak[e] such inquiry as shall satisfy

it that there is a factual basis for the plea.’” Id. at *___

(quoting Fed. R. Crim. P. 11(f)). Accordingly, the determination

of Rayford’s motion, like Barnhardt’s, depends on whether there is

an adequate factual basis for his guilty plea.

“The acceptance of a guilty plea is deemed a factual finding

that there is an adequate factual basis for the plea.” United

States v. Blair, 54 F.3d 639, 643 (10th Cir.) (quoting United

States v. Adams, 961 F.2d 505, 509 (5th Cir. 1992)), cert. denied,

___ U.S. ___ (1995). Therefore, our review is under the clearly

erroneous standard, Blair, 54 F.3d at 643, and a finding of fact is

not clearly erroneous unless it is without factual support in the

record or, after reviewing all the evidence, we are left with a

definite and firm conviction that a mistake has been made. Exxon

Corp. v. Gann, 21 F.3d 1002, 1005 (10th Cir. 1994).

The district court found that the factual basis for Rayford’s

guilty plea to Count 7 was as follows:

Undercover police officers became aware of the

distribution of crack cocaine from the defendant’s

residence. The officers made several cocaine purchases

from the defendant’s residence. An undercover officer

became involved in negotiations with the defendant to

trade handguns for crack cocaine. On February 18, 1994,

the undercover officers met with the defendant and

negotiated to trade two 9mm semi-automatic handguns for

7.5 grams of crack cocaine. The defendant had 7.5 grams

of crack cocaine to trade, and was arrested when he went
- 4 -

to the undercover police vehicle to complete the

transaction and obtain the guns. The defendant

subsequently admitted attempting to obtain firearms by

trading crack cocaine for them.

(ROA, Vol. I, Tab 126 at 2).

In Bailey, the Supreme Court held that “§ 924(c)(1) requires

evidence sufficient to show an active employment of the firearm by

the defendant, a use that makes the firearm an operative factor in

relation to the predicated offense.” ___ U.S. at ___, 116 S.Ct. at

505 (emphasis original). “The active-employment understanding of

“use” certainly includes brandishing, displaying, bartering,

striking with, and most obviously, firing or attempting to fire, a

firearm.” Bailey, ___ U.S. at ___, 116 S.Ct. at 508 (emphasis

added). See United States v. Miller, 84 F.3d 1244, 1256 (10th Cir.

1996) (evidence that the defendant bartered a firearm will support

a jury verdict that the defendant ‘used’ a firearm).

In this case, contrary to Rayford’s assertions, we are not

concerned with the “carry” prong of § 924(c)(1). The district

court found that Rayford negotiated the “trade” of handguns for

crack cocaine and Rayford admitted that he negotiated “to trade

handguns for crack cocaine.” (Appellant’s Opening Brief at 3).

Since Bailey specifically listed barter as an example of “use” of

a firearm under § 924(c)(1), we hold that the district court did

not err in denying Rayford’s § 2255 motion. See Bailey, ___ U.S.

at ___, 116 S.Ct. at 508; Miller, 84 F.3d at 1256.

We affirm substantially for the reasons set forth in the
district court’s Memorandum and Order of April 5, 1996.

AFFIRMED.

Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge