UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5612

JAMES M. RICHMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-94-54)

Argued: March 5, 1997

Decided: May 7, 1997

Before LUTTIG and WILLIAMS, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Deborah C. Wyatt, WYATT & CARTER, Charlottes-
ville, Virginia, for Appellant. Jean Barrett Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF:
Robert P. Crouch, Jr., United States Attorney, Charlottesville, Vir-
ginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant James Michael Richman was convicted, pursuant to a
plea agreement, of manufacturing marihuana and using or possessing
a firearm in relation to a drug offense. Richman challenges his con-
viction on the grounds that he was convicted in violation of the Dou-
ble Jeopardy Clause, that his plea was involuntary with respect to the
firearm count, and that insufficient evidence supported the district
court's drug quantity attributions. For the reasons that follow, we
affirm.

I.

In 1994, unmanned surveillance cameras detected appellant Rich-
man cultivating marihuana fields in George Washington National For-
est. Richman was arrested and he led officers to fields in which 348
marihuana plants were growing. See J.A. at 42-44. During an ensuing
search of Richman's residence, officers found a videotape made by
Richman, in which he instructs others in marihuana growing tech-
niques. On the videotape, Richman describes his techniques and busi-
ness, points to various marihuana fields and says"this is about
$70,000 worth, and this is about $80,000 worth." J.A. at 45-46. The
video also shows a handgun located on a stump in the marihuana
fields, which Richman removes during the course of the video. See id.

Richman was charged with one count of manufacturing marihuana
and two counts of possessing a firearm in connection with a drug
offense. Richman thereafter entered into a plea agreement pursuant to
which he agreed to plead guilty to one count of manufacturing mari-
huana and one count of possession of a firearm, with the government
agreeing to dismiss the second firearm count. Under the plea agree-
ment, Richman stipulated to responsibility for a drug weight equiva-
lent to at least 1000 plants, the exact number to be determined by the

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probation officer in the presentence report. See J.A. at 10. The plea
agreement stated that Richman understood, and that the government
intended to recommend, that he receive a prison sentence of fifteen
years (ten years as a mandatory minimum on the drug count for more
than 1000 plants, and five years as a mandatory minimum on the fire-
arm count, which, by statute, were to run consecutively). See J.A. at
10, 14. The agreement also required Richman to testify truthfully if
called upon. See J.A. at 11. Last, although the parties agreed that
Richman would be allowed to present mitigating evidence, Richman
agreed not to argue for a sentence of less than fifteen years under any
circumstances, and he waived his right to appeal any sentencing
guideline issues. See J.A. at 13-14.

On March 17, 1995, the plea agreement was submitted to the dis-
trict court and a Rule 11 hearing was held. In the course of reviewing
the plea with Richman, the court explained that Richman was stipulat-
ing to 1000 plants, but that the number would be finally determined
by the probation officer. The court further stated that the probation
officer might determine in the PSR that Richman was responsible for
fewer than 1000 plants, thus resulting in only a five year sentence on
the manufacturing count, although Richman's plea agreement did not
address this contingency. See J.A. at 38-39. Next, in a confusing
exchange, the court purported to accept the plea agreement, but also
stated that the court was retaining the power to reject the plea.
Although the court stated that it found Richman guilty, the court did
not enter a judgment of conviction.

Richman appeared before the court for sentencing on June 6, 1995.
During the hearing, the government presented evidence to support the
1000-plant stipulation, including evidence of the 348 plants that Rich-
man was found with, Richman's videotape (which was made in
1991), in which Richman stated that he had grown 250-300 plants
each year in 1990 and 1991, and an officer's testimony that Richman
had admitted to growing marihuana for profit every year since 1987.
See J.A. at 41-50. The PSR concluded that Richman was responsible
for at least 1000 plants, relying on the concrete evidence of 948 plants
(in the years 1990, 1991, and 1994) and extrapolating at least 52
plants from the other years that Richman was known to be in busi-
ness. See J.A. at 162.

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Richman then took the stand and testified that he could not recall
growing more than 850 plants. At the end of cross-examination, the
court and Richman engaged in the following exchange in which the
court refused to accept Richman's plea:

          COURT: . . . Will you accept responsibility for growing
          one thousand or more plants?

          RICHMAN: It's just hard for me to accept responsibility
          for something I can't remember I did.

          COURT: I'm going to reject the plea.

          RICHMAN: But I'll accept it.

          COURT: We'll go to trial on this one.

          RICHMAN: No, sir, I will accept it. I want to accept the
          plea bargain.

          COURT: We'll go to trial on this one. I'm sorry, Mr.
          Racey [defense counsel], but I cannot accept that plea.

          RACEY: I'm very sorry, too, your honor.

          COURT: I cannot accept that plea, which is, in effect, a
          conditional plea.

J.A. at 79-80 (emphasis added). The court thereafter directed the par-
ties to proceed to trial.

A month and a half later, on July 25, 1995, Richman and the gov-
ernment returned to the district court with a second signed plea agree-
ment which was identical to the first. A second guilty plea and
sentencing hearing was held, and the evidence presented at that hear-
ing was virtually identical to that presented at the first hearing. This
time, Richman did not contest the drug amount, and the court sen-
tenced Richman to ten years on the manufacturing count and five con-
secutive years on the firearms count. From this conviction and
sentence, Richman appealed.

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II.

Richman's first, and primary, argument is that his conviction and
sentence pursuant to the second plea agreement is barred by the Dou-
ble Jeopardy Clause because the district court accepted his initial plea
and he stood convicted pursuant to the terms of that agreement. We
reject this argument.

It is true, as Richman asserts, that the district court said at one point
during the Rule 11 colloquy on Richman's original plea that it
accepted Richman's plea and that Richman was "adjudged guilty" of
the offenses charged in counts 1 and 3 of the indictment, J.A. at 51.
When the colloquy is read as a whole, however, it is clear that at that
point the district court had not finally accepted Richman's plea, but,
instead, had merely provisionally accepted the plea. In fact, the dis-
trict court stated only a few moments later:

          Now, let me add this. If, for instance, the plea were to be
          rejected [by Richman], this Court has no problem at all --
          if the plea agreement were to be rejected, this Court has uni-
          formly said, okay, that's fine, then I [the court] reject the
          guilty plea and we'll go to trial.

J.A. at 56. Consistent with the fact that the district court did not actu-
ally accept Richman's plea during this colloquy is that judgment
against Richman on this plea was never entered by the district court;
the only judgment entered against Richman was that on July 31, 1995,
pursuant to Richman's second plea agreement and after his second
sentencing hearing. See J.A. at 153.

Because we hold that Richman's original guilty plea was never
actually accepted by the district court, it necessarily follows that the
district court did not, contrary to Richman's contention, violate Rules
11 and 32 of the Federal Rules of Criminal Procedure by "nullifying"
a previously accepted guilty plea. We cannot help but note in passing
the disingenuousness of this claim. Not only did Richman and his
counsel repeatedly plead with the district court to accept Richman's
plea agreement after the court indicated its unwillingness to do so
because Richman was attempting to condition the plea, see, e.g., J.A.
at 81 (The court: "I understand what you're trying to do. You're try-

                     5
ing to salvage this plea agreement."), but Richman ultimately returned
to the district court with a plea agreement identical to that which the
court initially rejected. Thus, Richman is essentially seizing upon
events which he invited (apparently, even to his attorney's surprise)
in order to avoid conviction on charges as to which he has, from the
beginning and to this day, wished to, and twice did, plead guilty.

III.

Richman also contends that there was insufficient evidence pres-
ented at his second sentencing hearing to support the district court's
finding that he was responsible for 1000 plants, because the evidence
only showed that he grew a total of 948 plants in the years 1990,
1991, and 1994.* Richman concedes that there was evidence that he
grew marihuana in other years, but he argues that there was no evi-
dence in these years as to the actual number of plants he grew. There
was ample evidence to support the district court's determination that
Richman was responsible for at least an additional 52 plants, beyond
the 948 which he does not challenge. As one officer testified, Rich-
man admitted that he had grown marihuana for profit in 1987, 1988,
1989, 1992, and 1993. See J.A. at 118-19. Given the size of Rich-
man's operation and the large number of plants (948) Richman grew
in 1990, 1991, and 1994, the court could have easily and reasonably
inferred that Richman grew hundreds, if not thousands, of plants dur-
ing the years for which no direct evidence was proffered. The district
court's determination that Richman grew 52 plants in addition to the
948 plants is, a fortiori, reasonable.

There would be sufficient evidence in the stipulation in Richman's
second plea agreement to support the district court's finding of 1000
plants. Richman stipulated to growing 1000 plants in his second plea
agreement, which was in effect at the second sentencing hearing. As
we have held, when determining the amount of drugs that a defendant
is responsible for, the court may rely on "a stipulation by the parties
_________________________________________________________________
*The evidence to which Richman refers includes the 348 plants found
with Richman in 1994, see J.A. at 43-44, and the 250-300 plants Rich-
man claimed in his video to have grown for each of the years 1990 and
1991, see J.A. at 45-46.

                    6
that the court determines to have a reasonable factual basis." United
States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993).

IV.

Finally, Richman challenges the voluntariness of his plea of guilty
to a violation of 18 U.S.C. section 924(c), claiming that the district
court erred in entering judgment under Rule 11(f). Specifically, Rich-
man argues that, in light of the Supreme Court's decision in Bailey
v. United States, 116 S. Ct. 501 (1995), the district court could not
have found that there was any factual basis for the plea. See United
States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). Richman argues
that the sole evidence relating to his firearms charge -- that he dis-
played and moved his handgun (as captured on the video) -- was
insufficient to demonstrate active employment within the meaning of
Bailey.

We affirm under Rule 11(f) a district court's finding of a sufficient
factual basis for a guilty plea to a violation of 18 U.S.C. § 924(c)
unless the court clearly erred in holding that there was a factual basis
for the defendant to plead guilty to either "using" or "carrying" a fire-
arm. See Mitchell, 104 F.3d at 652. Applying this standard, we
believe that Richman's display of his firearm was sufficient to consti-
tute "use" of a firearm, even given the "active employment" require-
ment of Bailey. While the Court in Bailey explained that active
employment of a firearm does not include the mere storage of a fire-
arm near drugs or their proceeds, it also made clear that active
employment does include the "brandishing" or"displaying" of a fire-
arm in the manner in which Richman brandished and displayed the
firearm at issue in this case. See Bailey, 116 S. Ct. at 508. Regardless
of whether his display of the weapon constituted"use," it clearly con-
stituted "carrying" of the firearm. According to our recent decision in
Mitchell, "carry" under § 924(c)(1)"requires knowing possession and
bearing, movement, conveyance, or transportation of the firearm in
some manner." Conveying a firearm on one's person during a drug
offense, we noted, "is perhaps the clearest example of a violation of
a carry prong." Mitchell, 104 F.3d at 652. Richman certainly "carried"
his firearm under this definition of "carry." The videotape itself
revealed that Richman carried the gun on his person at the marihuana
fields on at least one occasion during his continuous drug growing

                     7
transaction. See J.A. at 46 (Richman "views" the gun and then "takes
it away."). While Richman argues that, under the logic of Bailey, "ac-
tive employment" is required for "carry" as well as "use," we squarely
rejected this position in Mitchell. See Mitchell, 104 F.3d at 653.
Accordingly, we uphold Richman's conviction for possession of a
firearm during and in relation to a drug offense.

For the same reasons, even assuming that Richman did not waive
any challenge to the sufficiency of the evidence to support his section
924(c) conviction by pleading guilty to the crime, see United States
v. Broce, 488 U.S. 563, 570 (1989), we affirm Richman's conviction
against this attack as well.

The judgment of the district court is affirmed.

AFFIRMED

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