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. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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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
This order and judgment is not binding precedent, except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.
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
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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 Ҥ 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
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district court’s Memorandum and Order of April 5, 1996.
AFFIRMED.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge