                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2349
                                    ___________

United States of America,                *
                                         *
                   Appellee,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Donald A. Hellbusch,                     *
                                         *
                  Appellant.             *
                                    ___________

                               Submitted: October 16, 2000

                                   Filed: December 13, 2000
                                    ___________

Before McMILLIAN, HEANEY and BOWMAN, Circuit Judges.
                           ___________


HEANEY, Circuit Judge.

      Donald Hellbusch appeals the district court’s decision that he must show actual
innocence of all counts of the indictment before the court can consider his habeas
claims on the merits. Hellbusch need not show actual innocence of the dismissed
charges since they are less serious, on their face, than the § 924(c) count. We vacate
the decision below and remand the case to district court for resentencing.
I. Background

      In February, 1993, appellant Hellbusch sold methamphetamine to a confidential
informant and an undercover investigator. The investigator subsequently obtained a
search warrant for Hellbusch’s residence, and conducted another controlled buy there.
Once the purchase was complete, a surveillance team entered the residence and
executed the search warrant. During the search the officers seized 23.05 grams of
methamphetamine, one pound of marijuana, $900 in U.S. currency, drug paraphernalia,
and four firearms.

       On May 20, 1993, Hellbusch was charged in a four-count indictment. Count I
alleged distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1); Count
II alleged distribution and possession with intent to distribute methamphetamine in
violation of 21 U.S.C. § 841(a)(1); Count III alleged use and carriage of firearms in the
commission of a drug trafficking offense in violation of 18 U.S.C. § 924(c); and Count
IV alleged that Hellbusch was a felon in possession of firearms in violation of 18
U.S.C. § 922(g).

      On January 31, 1994, Hellbusch pleaded guilty to Counts II and III. The
government agreed to dismiss Counts I and IV with prejudice. Hellbusch was
sentenced to six months imprisonment on Count II and 60 months imprisonment on
Count III, to be served consecutively, followed by a three-year term and a five-year
term of supervised release, to be served concurrently. Hellbusch appealed this
conviction based on the denial of his motion to suppress. The court’s judgment was
affirmed in March 1995.

      Hellbusch then filed a motion pursuant to 28 U.S.C. § 2255 and Federal Rule of
Criminal Procedure 32(e) to vacate his sentence and withdraw his guilty plea due to the
United States Supreme Court’s decision in Bailey v. United States, 516 U.S. 137
(1995). The district court denied Hellbusch’s motion on the grounds that he had

                                          -2-
waived his challenges to the conviction and sentence by knowingly and voluntarily
pleading guilty to the firearms count.

      This court reversed and remanded on June 30, 1998 pursuant to the Supreme
Court’s decision in Bousley v. United States, 523 U.S. 614, 662 (1998) (holding that
a procedurally defaulted pre-Bailey plea to a § 924(c) violation may be collaterally
attacked if defendant can demonstrate either cause and actual prejudice, or actual
innocence). Upon remand, the district court was to consider Hellbusch’s claims in light
of Bousley and Muscarello v. United States, 524 U.S. 125 (1998).

       The district court denied Hellbusch's request for relief. The court determined
that under Bailey, Hellbusch had not “used” a firearm for the purposes of a § 924(c)(1)
conviction, but held that Bousley requires a demonstration of innocence as to all
charges in the indictment, and that Hellbusch was unable to make such a showing with
respect to the drug distribution and felon in possession charges (Counts I and IV).
Hellbusch appeals the district court’s decision.

II. Discussion

       The appellant raises the following issues: (1) whether the district court erred in
holding that Hellbusch must prove actual innocence of all charges in the indictment, not
just the “more serious” charges; (2) whether Counts I and Counts IV, the dismissed
charges under the plea agreement, are “more serious” than the § 924(c)(1) offense; (3)
whether his guilty plea was invalid if his procedural default is excused; and (4) whether
the case should be reassigned to another district court judge on remand. We do not
believe that the partiality of the district court judge can be questioned here, and deny
appellant’s request to assign the case to another judge.

       We agree with the district court’s holding that as a matter of law there is
insufficient evidence to conclude that Hellbusch used a firearm in the underlying drug

                                          -3-
offense. We find that Hellbusch’s conviction under 18 U.S.C. § 924(c)(1) is
constitutionally invalid and must be set aside.

       In Bousley, the Supreme Court explained that to overcome a procedural default
a petitioner’s actual innocence showing need only extend to the § 924(c) charge to
which the petitioner pled guilty, and to any “more serious charges” that the government
dismissed during the course of plea bargaining. 523 U.S. 614, 624 (1998); see also
United States v. Halter, 217 F.3d 551, 553-54 (8th Cir. 2000). The question before us,
therefore, is whether the dismissed charges, Counts I and IV, are “more serious”
charges than § 924(c)(1).

       Under the Federal Sentencing Guidelines, neither Count I nor Count IV of the
original indictment is “more serious” than the § 924(c)(1) offense. In the analysis, the
Guidelines serve as the proper basis for determining which of the charges is the more
serious charge. See Halter, 217 F.3d at 553. Actual punishment, as opposed to the
statutory maximum, is the relevant factor when comparing the seriousness of the
charges. See Id. at 553. The court below correctly determined that the base offense
level for Count II was eight, and that Hellbusch’s criminal history level was III,
yielding a 6-12 month sentence. Count III, the § 924(c) charge, required a five-year
mandatory minimum sentence, to be served consecutively with the six-month sentence
resulting from Count II.

       The dismissed charges, Counts I and IV, would have resulted in base offense
levels of 8 and 20 respectively, yielding 6-12 month and 41-51 month sentences
respectively. The actual time served would have been less than the five-year
mandatory minimum required by § 924(c), indicating that the dismissed charges, when
grouped pursuant to United States Sentencing Guidelines Manual § 3D1.2, are less
serious than the § 924(c) charge. Hellbusch need not show actual innocence of the
dismissed charges since they are less serious, on their face, than the § 924(c) count.


                                          -4-
For this reason the district court’s opinion should be vacated and the case remanded to
the district court for resentencing.

      A true copy.

             Attest:

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




                                          -5-
