                     Revised October 28, 1998

                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                           No. 97-60130



                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                                VERSUS


                         DONALD SANDERS,

                                                Defendant-Appellant.




          Appeal from the United States District Court
            for the Northern District of Mississippi


                        September 30, 1998
Before KING, SMITH and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:

     Appellant Donald Sanders filed a petition for habeas relief

pursuant to 28 U.S.C. § 2255 alleging that the factual basis of his

guilty plea to using and carrying a firearm during and in relation

to a drug trafficking offense did not satisfy the Supreme Court’s

standard in Bailey v. United States, 516 U.S. 137 (1995).       The

district court denied relief.    We vacate and remand.

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                   FACTS AND PROCEDURAL HISTORY

     Sanders pleaded guilty, pursuant to a plea agreement reached

midway through his jury trial, to using and carrying a firearm

during and in relation to a drug trafficking crime in violation of

18 U.S.C. § 924(c), as well as several drug trafficking offenses.

The factual basis for the guilty plea was stated as follows by the

government during the guilty plea proceedings:

          On April 3rd, 1991, Agent Craig Taylor and other
     agents obtained a search warrant for the residence where
     Donald Sanders lived based on information that he had
     cocaine and crack cocaine at that location.          They
     executed the search warrant.          Agent Taylor had
     information that Sanders sometimes kept cocaine base
     hidden outside the house. So he checked the outside of
     the house and found a path        leading from Sanders’
     residence to the adjoining house which was a vacant
     house. He obtained -- the agent obtained permission from
     the owner of that residence to search that residence.
          Underneath the residence there was a door where it
     was boarded up underneath the house which was off the
     ground, he opened that little door, and underneath there
     the agent found a Sunbeam bag containing Pringles Potato
     Chip can. Inside the Pringles can, Agent Taylor found
     41.47 grams of cocaine base, 21.4 grams of cocaine
     powder. The Pringles bag was checked for prints, as well
     as other bags, and Sanders’ fingerprints was found on the
     Sunbeam bag.
          There was a pistol located with the cocaine
     underneath the house. It was a FIE .38 caliber pistol,
     the same serial number as described in the indictment.
     It was there available and accessible to protect the
     cocaine for Mr. Sanders and was there for no other
     apparent purpose than in connection with the drug
     trafficking.

     Sanders confirmed the accuracy of the prosecutor’s statement.

The court found there was a factual basis for Sanders’ guilty pleas

and that they were informed and voluntary.   Sanders was sentenced



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to the minimum guideline sentence of 235 months followed by the

statutorily mandated consecutive 60 month sentence for the firearm

violation.   Ten remaining counts were dismissed.

     Sanders appealed his conviction and sentence.      His trial

counsel filed a brief in accordance with Anders v. California, 386

U.S. 783 (1967), which did not raise his current objection to his

§ 924(c) conviction. This court determined the appeal had no issue

of “arguable merit” and dismissed it with an unpublished opinion.

United States v. Sanders, No. 92-7781 (5th Cir. May 4, 1993).

     On January 22, 1996, Sanders filed a pro se 28 U.S.C. § 2255

motion arguing that his firearm conviction under § 924(c) was

unsupportable under Bailey v. United States, 516 U.S. 137 (1995).

The district court relied on another Mississippi district court’s

opinion which held, “By admitting that he moved a firearm from one

location to another location to store it near drugs, a defendant

would have admitted guilt under the ‘carry’ prong of 924(c).”

United States v. Wainuskis, 942 F. Supp. 1101, 1105 n.1 (S.D.Miss.

1996).    The district court concluded that the facts in Sanders’s

case mirror the facts in Wainuskis and, applying the logic of that

case, sustained Sanders’s sentence based on the “carry” prong of §

924(c).

                         STANDARD OF REVIEW

     We review a district court’s denial of a § 2255 motion under

two standards. The factual finding that there is an adequate basis


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for the plea is reviewed for clear error.          United States v. Rivas,

85 F.3d 193, 194 (5th Cir. 1996).           We review the district court’s

conclusions of law de novo.       United States v. Faubion, 19 F.3d 226,

228 (5th Cir. 1994).

                                    ANALYSIS

     Sanders’s judgment reflects that he pleaded guilty to and was

convicted for “use of a firearm during and in relation to a drug

trafficking crime.” (emphasis added).           Sanders contends, and the

Government does not dispute, that the factual basis of Sanders’s

plea does not support a conviction for “use” under the analysis set

forth in Bailey.       However, because Sanders pleaded guilty to an

indictment   stating    that   he    “did   knowingly...carry   and   use   a

firearm” the Government is only required to establish a factual

basis for one of the acts charged, i.e., the use prong or the carry

prong.   See Turner v. United States, 396 U.S. 398, 420-21 (1970).

Thus, the challenged conviction may stand if the “carry” prong of

§ 924(c) is satisfied.      Id.

     Pursuant to the Supreme Court’s recent opinion in Bousley v.

United States, ___ U.S. ___, 118 S. Ct. 1604 (1998), a petitioner

can successfully petition for § 2255 relief after a guilty plea

only if: (1) the plea was not entered voluntarily or intelligently,

see id. at 1610-11, or (2) the petitioner establishes that he is

actually innocent of the underlying crime.           See id. at 1611-12.

     In Bousley, a petitioner collaterally attacked his § 924(c)(1)

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conviction pursuant 28 U.S.C. § 2255.            See id. at 1608-09.     Based

on the Supreme Court’s decision in Bailey v. United States, 516

U.S. 137 (1995) -- rendered following his guilty plea -- the

petitioner argued that his plea was not knowingly or intelligently

entered.    See Bousley, 118 S. Ct. at 1609.

     The Court refused to addressed whether the plea was entered

knowingly    and    intelligently,     because    Bousley   had   procedurally

defaulted by failing to challenge the validity of his plea on

direct review.           See id. at 1610.        In order to overcome this

procedural default, the Supreme Court required Bousley to show

cause and prejudice or to demonstrate his actual innocence.                See

id. at 1611.       Further, the Court ruled that Bousley was unable to

show cause for his default, rejecting Bousley’s claims that prior

to the Supreme Court’s decision in Bailey, a Bailey-type attack on

§ 924(c)(1) conviction was novel or futile.            See Bousley at 1611.

Thus, the fact that the law was unsettled, or settled incorrectly

in petitioner’s circuit, did not excuse the petitioner’s failure to

directly attack the validity of his plea.            See id.

     Next, the Court articulated the standard for showing actual

innocence.         “To    establish   actual   innocence,   petitioner   must

demonstrate that, in light of all the evidence, it is more likely

than not that no reasonable juror would have convicted him.”               See

Bousley,     118     S.    Ct.   at    1611    (internal    quotation    marks

omitted)(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). The

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Court distinguished actual innocence from mere legal insufficiency.

See Bousley, 118 S. Ct. at 1611.            Moreover, the Court noted that

the Government could produce any admissible evidence of Bousley’s

guilt in order to sustain the underlying conviction -- not merely

the evidence presented during the plea colloquy.               See id. at 1611-

12.    With these standards established, the Court remanded the

action to allow Bousley the opportunity to establish his actual

innocence.    See id. at 1612.

      Like Bousley, Sanders failed to challenge the validity of his

guilty plea on direct appeal and has procedurally defaulted on the

challenge.     In   order     to   overcome   this   default,     Sanders     must

establish cause and prejudice or actual innocence.              In the wake of

Bousley, Sanders’s cause and prejudice argument is foreclosed.

Sanders’s only remaining claim is that he is actually innocent of

the charged crime.

      The Supreme Court in Bailey did not elucidate the meaning of

the word “carry.”      See United States v. Harlan, 130 F.3d 1152, 1152

(5th Cir. 1997).       However, in Muscarello v. United States, 118 S.

Ct.   1911   (1998),    the   Supreme   Court    held   that    “a   person    who

knowingly possesses and conveys firearms in a vehicle, including in

the locked glove compartment or trunk of a car,” carries that

weapon in violation of § 924(c).            Muscarello does not control the

outcome of this case because there is no indication that Sanders

carried the gun in a vehicle.           However,     Muscarello informs our


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decision with extensive discussion of the congressional intent

behind the choice of the term “carry” in § 924(c).                             “Congress

intended to use the word in its primary sense....                       ”     Muscarello,

118   S.   Ct.   at    1914.   See   Webster’s         Third      New       International

Dictionary 343 (1986)(first definition: “move while supporting (as

in a vehicle or in one’s hands or arms)”).                  Thus, “carry” is to be

construed broadly, see Muscarello, 118 S. Ct. at 1918, and is not

limited     to   situations     where         the    firearm       is       “immediately

accessible.”     Id. at 1919.

      We conclude that Sanders’s conviction cannot be sustained on

the record before us under the “carry” prong of § 924(c).                            The

firearm was lying under a porch three feet from where Sanders hid

his cocaine.          The evidence did not tie the gun to Sanders by

fingerprints, registration, testimony or admission.                         The evidence

is not sufficient to establish that Sanders had ever moved it in

any fashion.          The district court’s finding that there was an

adequate factual basis in the record to support the guilty plea is

clear error.      We therefore VACATE the district court’s denial of

Sanders’ § 2255 motion, and REMAND this matter to the district

court, pursuant to the dictates of Bousley, 118 S. Ct. at 1612, to

afford the petitioner and the Government the opportunity to present

any   relevant    evidence     on   the   the       issue    of   Sanders’s       actual

innocence.

      VACATED AND REMANDED.


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