PUBLISH
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UNITED STATES COURT OF APPEALS
Filed 8/20/96
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA, )
)
Respondent-Appellee, )
)
v. ) No. 96-6127
) (W. Dist. of Okla.)
THOMAS D. BARNHARDT, ) (D.C. No. CIV-96-181-A)
)
Petitioner-Appellant. )
______
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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Submitted on the briefs:
Thomas D. Barnhardt, Pro Se.
Patrick M. Ryan, United States Attorney, M. Jay Farber, Assistant
United States Attorney, Oklahoma City, Oklahoma.
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BARRETT, Senior Circuit Judge.
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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.
Thomas D. Barnhardt (Barnhardt), appearing pro se and having
been granted leave to proceed in forma pauperis, appeals the
district court’s Order of March 18, 1996, dismissing his motion to
vacate, set aside or correct sentence filed pursuant to 28 U.S.C.
§ 2255.
On June 14, 1990, Barnhardt waived his right to a jury trial
and pled guilty to possession with intent to distribute
approximately one kilogram of cocaine, in violation of 21 U.S.C. §
841(a)(1) (Count 2); using or carrying a firearm during and in
relation to a drug-trafficking crime, in violation of 18 U.S.C. §
924(c)(1) (Count 3); and interstate travel in aid of racketeering,
in violation of 18 U.S.C. § 1952(a)(3) (Count 9).1 He was
sentenced to 63 months imprisonment on Counts 2 and 9, to run
concurrently, and 60 months imprisonment on Count 3, to run
consecutively. Barnhardt did not file a direct appeal.
On February 2, 1996, Barnhardt filed a motion to vacate, set
aside or correct sentence pursuant to 18 U.S.C. § 2255.2 In his
motion, Barnhardt challenged his conviction and sentence on Count
3, using or carrying a firearm during and in relation to a drug-
trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He
argued that he never “used” a firearm within the meaning of §
1
Barnhardt also agreed to the forfeiture of certain
personal property pursuant to 21 U.S.C. § 853 (Count 10).
2
This is Barnhardt’s second § 2255 motion. On February
19, 1993, Barnhardt filed a § 2255 motion concerning the
retroactive application of U.S.S.G. § 3E1.1 which was denied by
the district court on September 24, 1993. There was no appeal
from that order.
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924(c)(1) as defined in Bailey v. United States, ___ U.S. ___, 116
S.Ct. 501 (1995).
On March 18, 1996, the district court dismissed Barnhardt’s §
2255 motion, concluding that there was ample evidence on the record
to support his conviction and sentence on Count 3 under the “carry”
prong of § 924(c)(1).
On appeal, Barnhardt contends that the district court erred in
dismissing his § 2255 motion, inasmuch as his plea was involuntary,
and a factual issue remains as to whether he had the firearm on his
person at the time the offense was committed.
As a threshold matter, we must determine whether (1) Barnhardt
waived his right to challenge the factual basis of his plea by
pleading guilty, and (2) whether Bailey applies retroactively to
allow relief in collateral proceedings under 28 U.S.C. § 2255.
I. Waiver
In United States v. Broce, 488 U.S. 563, 565 (1989), the
Supreme Court held that a defendant is precluded from collaterally
attacking a voluntary and intelligent guilty plea.3 However, the
Court noted that an exception to the rule barring collateral attack
on a guilty plea applies when the defendant had “‘the right not to
3
Notwithstanding the dictates of Broce, we note that
“those courts which have addressed Bailey in the context of a
prisoner’s § 2255 motion applied the Bailey analysis to the
petitioner’s conviction, notwithstanding the fact that the
petitioner had pled guilty to a violation of 18 U.S.C. §
924(c)(1).” United States v. Fletcher, 919 F. Supp. 384, 387 (D.
Kan. 1996) (citations omitted).
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be haled into court at all upon the felony charge.’” Id. at 574-75
(quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974)).
In United States v. Barboa, 777 F.2d 1420 (10th Cir. 1985), we
followed Blackledge. Barboa pled guilty to conspiracy to damage
and destroy by explosives a building used in an activity affecting
interstate commerce, in violation of 18 U.S.C. § 371. Id. at 1421.
Following sentencing, Barboa filed a § 2255 motion on the grounds
that his sole coconspirator was a government informant. Id. at
1422. On appeal, we rejected the government’s argument that
Barboa’s guilty plea served as an admission that he committed the
crime of conspiracy. Id. at 1423 n.3. We held that a plea of
guilty does not bar a claim that the defendant’s conviction is
unconstitutional “‘no matter how validly his factual guilt is
established’” if the facts he pled guilty to are subsequently
determined not to be criminal. Id. (quoting Menna v. New York, 423
U.S. 61, 63 n.2 (1975)).
Here, the facts are analogous to those in Barboa. Barnhardt
argues that he did not “use” a firearm under § 924(c)(1) as defined
by Bailey, i.e., that the factual basis for his guilty plea does
not constitute a crime under § 924(c)(1) and Bailey. Therefore, we
hold that he may attack the validity of his conviction under 28
U.S.C. § 2255.
II. Retroactivity
Next, we must determine whether Bailey has retroactive
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application to cases on collateral review.4 The courts which have
addressed this issue have concluded that Bailey applies
retroactively and we now add ourselves to that list.5 See United
States v. Cota-Loaiza, 1996 WL 403303 (D. Colo. 1996) (citations
omitted). In so doing, the courts have relied on Davis v. United
States, 417 U.S. 333, 346 (1974), wherein the Supreme Court held
that a petitioner collaterally attacking his conviction should be
given the benefit of case law decided after his conviction when the
conviction was “for an act that the law does not make criminal.”
In United States v. Dashney, 52 F.3d 298 (10th Cir. 1995), we
applied Davis and held that substantive changes in the law, as
opposed to procedural changes, apply retroactively. In Dashney,
the defendant was convicted in 1990 of violating 31 U.S.C. §§
5322(a) and 5324(3) by structuring cash transactions in order to
evade currency reporting requirements. Id. at 298. In 1994, the
Supreme Court held that a conviction under 31 U.S.C. §§ 5322(a) and
5324(3) required that the defendant know that the structuring in
which he engaged was unlawful. Ratzlaf v. United States, 510 U.S.
4
In United States v. Wacker, 72 F.3d 1453 (10th Cir.
1995), petition for cert. filed, (U.S. June 10, 1996) (No. 95-
9284), we decided that Bailey applied retroactively to cases on
direct review on the date it was decided, December 6, 1995.
5
This decision is supported by our unpublished decision,
United States v. Parker, 1996 WL 202607 (10th Cir. April 26,
1996), wherein we reversed the defendant’s conviction and
sentence under § 924(c)(1) and remanded to the trial court for
further factual determinations.
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135 (1994). On appeal from the district court’s denial of his §
2255 motion, we concluded that Teague v. Lane, 489 U.S. 288, 296
(1989), which holds that new constitutional rules of criminal
procedure should not be applied retroactively to cases on
collateral review, was distinguishable because Ratzlaf established
a new substantive rule of law rather than a new procedural rule of
law.6 Therefore, we held that Ratzlaf applied retroactively.
Like Ratzlaf, Bailey establishes a new non-constitutional rule
of substantive law which may produce a different result under the
facts of this case than that dictated by prior law. In other
words, actions that were criminal pre-Bailey may no longer be such.
Therefore, we hold that Bailey applies retroactively to convictions
under 18 U.S.C. § 924(c)(1).
III. Bailey
Having concluded that Barnhardt has not waived his right to
challenge his conviction under § 2255 and that Bailey applies
retroactively, we must now address the application of Bailey in a
case where the defendant pled guilty to a charge that he used or
carried a firearm during and in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1).
In United States v. Miller, 84 F.3d 1244, 1257 (10th Cir.
1996), we discussed Bailey’s application where a defendant was
6
For a very thorough discussion of retroactivity,
Teague, and Bailey, see Sanabria v. United States, 916 F. Supp.
106 (D. Puerto Rico 1996).
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convicted by a jury of using or carrying a firearm during and in
relation to a drug trafficking offense in violation of § 924(c)(1).
In Miller, we concluded that if (a) the indictment alleged that the
defendant both “used” and “carried” the firearm in question, (b)
the jury was instructed on both the “use” and “carry” prongs of §
924(c)(1), and (c) the “use” instruction was erroneous in light of
Bailey, then the defendant’s conviction under § 924(c)(1) must be
reversed unless the reviewing court is absolutely certain that the
jury convicted solely under the “carry” prong. Id. at 1256-57.
Our “reason for this approach is simple: ‘Jurors are not generally
equipped to determine whether a particular theory of conviction
submitted to them is contrary to law,’ Griffin [v. United States],
502 U.S. [46, 59 (1991)], and may have intended to convict the
defendant on a legally invalid ground, while rejecting the evidence
supporting the legally valid one.” Miller, 84 F.3d at 1257. The
only way to remedy the problem is to order a retrial and put the
government to its proof before a properly instructed jury. Id. at
1257.
However, when a defendant pleads guilty the concerns
underlying our decision in Miller are not implicated. When 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.” Fed. R. Crim. P. 11(f). See United States v.
Blair, 54 F.3d 639, 643 (10th Cir.), cert. denied, ___ U.S. ___
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(1995). Accordingly, the determination of Barnhardt’s motion
depends on whether there is an adequate factual basis for his
guilty plea.7
At Barnhardt’s change of plea hearing, the following exchange
took place between Barnhardt, Mr. Farber (government counsel), and
the court:
MR. FARBER: And as a result of your meeting with
him, you then went to a Holiday Inn located here in the
Oklahoma City area and you -- well, you purchased
approximately a kilo [of] cocaine.
DEFENDANT BARNHARDT: Yes, sir.
MR. FARBER: Correct? And you had possession of
that cocaine?
DEFENDANT BARNHARDT: Yes, sir.
MR. FARBER: Okay. And you at a later point in
time, I imagine, were going to redistribute that cocaine
and earn a profit, correct?
DEFENDANT BARNHARDT: Yes, sir.
MR. FARBER: Okay. And at the time of your arrest
there was a firearm, a .38 caliber revolver, found tucked
down I believe the back of you pants, is that correct?
DEFENDANT BARNHARDT: Yes, sir.
MR. FARBER: Okay. And you used that firearm,
again, in relation to the purchase of the narcotics that
you had just undertaken, correct?
THE COURT: Well, do you mean use it or carried it
in the event you might have to use it?
7
This conclusion is supported by the “overwhelming
weight of authority from other jurisdictions.” United States v.
Cota-Loaiza, 1996 WL 403303 (D. Colo. 1996) (citations omitted).
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DEFENDANT BARNHARDT: Carried it.
MR. FARBER: You had it for [a] reason, in case
something occurred that you would need to use that gun to
protect yourself, protect you money or whatever?
DEFENDANT BARNHARDT: Yes, sir.
(Tr. Guilty Plea at 35-36).
Based on his statements, the district court found that a
factual basis for Barnhardt’s guilty plea existed and that his plea
was made voluntarily, with a full understanding of the charges and
consequences. Id. at 36.
“The acceptance of a guilty plea is deemed a factual finding
that there is an adequate factual basis for the plea.” Blair, 54
F.3d at 643 (quoting United States v. Adams, 961 F.2d 505, 509 (5th
Cir. 1992)). 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).
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). “Evidence that the defendant brandished,
displayed, bartered, fired or attempted to fire a firearm, or used
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it to strike another person will support a jury verdict that the
defendant ‘used’ a firearm, as will evidence the defendant made ‘a
reference to a firearm calculated to bring about a change in the
circumstances of the predicate offense.’” Miller, 84 F.3d at 1256
(quoting Bailey, ___ U.S. at ___, 116 S.Ct. at 508).
Inasmuch as the Court did not specifically define the “carry”
prong of § 924(c)(1), it did state that:
[u]nder the interpretation we enunciate today, a firearm
can be used without being carried, e.g., when an offender
has a gun on display during a transaction, or barters
with a firearm without handling it; and a firearm can be
carried without being used, e.g., when an offender keeps
a gun hidden in his clothing throughout a drug
transaction.
Bailey, ___ U.S. at ___, 116 S.Ct. at 507.
In this case, it is clear that Barnhardt did not “use” the
firearm as Bailey defines “use” in terms of § 924(c)(1); there was
no “active employment” of a firearm. However, Barnhardt admitted,
in response to direct questioning from the court, at his change of
plea hearing, that he “carried” the firearm in question tucked into
the back of his pants during the drug transaction, handy in the
event that he might need to use it. This is exactly the type of
situation envisioned by the Supreme Court in Bailey to distinguish
“use” from “carry” under § 924(c)(1).
Therefore, we hold that the district court did not err in
upholding Barnhardt’s conviction for using or carrying a firearm
during and in relation to a drug-trafficking crime, in violation of
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18 U.S.C. § 924(c)(1), based on the carrying prong.
AFFIRMED.