                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3966
                                    ___________

Tommie Joe Johnson,                      *
                                         *
                    Appellee,            * Appeal from the United States
                                         * District Court for the Western
      v.                                 * District of Missouri.
                                         *
United States of America,                *         [PUBLISHED]
                                         *
                    Appellant.           *
                                    ___________

                            Submitted: June 15, 1999
                                Filed: July 30, 1999
                                   ___________

Before BOWMAN, HEANEY, and FAGG, Circuit Judges.
                          ___________

PER CURIAM.

        In 1990, Tommie Joe Johnson pleaded guilty to two drug-related charges and to
using a firearm during and in relation to a drug trafficking offense in violation of 18
U.S.C. § 924(c)(1) (1988). Johnson received a 120-month sentence on the drug
charges and a 60-month consecutive sentence on the firearm charge. Johnson did not
file a direct appeal. In 1995, the United States Supreme Court held a defendant must
actively employ a firearm to “use” it within the meaning of § 924(c), rejecting this
circuit’s less rigorous standard. See Bailey v. United States, 516 U.S. 137, 143 (1995);
United States v. Apker, 174 F.3d 934, 937 (8th Cir. 1999). Johnson then filed a motion
to vacate and set aside his conviction and sentence on the firearm charge, see 28 U.S.C.
§ 2255 (1996), claiming his guilty plea on that charge was invalid after Bailey. The
district court denied Johnson’s motion, and Johnson appealed. We remanded for
further consideration in light of the Supreme Court’s decision in Bousley v. United
States, 118 S. Ct. 1604, 1610-12 (1998), in which the Court stated a defendant can
collaterally attack a pre-Bailey guilty plea as involuntary or unintelligent, despite
procedurally defaulting the claim, if the defendant can demonstrate either cause and
prejudice or actual innocence. Without holding an evidentiary hearing, the district
court then granted Johnson’s motion and vacated his § 924(c) conviction and sentence,
stating that “[t]here is no showing [Johnson] actually used [the charged] weapons
during a drug transaction.”

       The Government appeals, arguing the district court committed error on remand
by granting Johnson’s motion without an evidentiary hearing. We agree. In rebutting
Johnson’s claim of actual innocence on the § 924(c) charge, the Government is entitled
“to present any admissible evidence of [Johnson’s] guilt even if that evidence was not
presented during [Johnson’s] plea colloquy and would not normally have been offered
before . . . Bailey. In cases where the Government has forgone more serious charges
in the course of plea bargaining, [Johnson’s] showing of actual innocence must also
extend to those charges.” Bousley, 118 S. Ct. at 1612.

       Here, the Government concedes it cannot present evidence showing Johnson’s
active employment of a firearm on the § 924(c) count to which he pleaded guilty, but
asserts it can present such evidence as to another § 924(c) charge dismissed in
exchange for Johnson’s guilty plea. The district court did not consider whether the
dismissed § 924(c) count was a “more serious” charge within the meaning of Bousley,
and we remand to give the district court the first opportunity to address that question.
See Apker, 174 F.3d at 941. If the district court concludes the dismissed § 924(c)
count is a more serious charge, then Johnson must show he is actually innocent of that
charge as well and the Government is entitled to present evidence rebutting Johnson’s
claim. See Bousley, 118 S. Ct. at 1611-12.

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      We reverse the district court’s judgment and remand this case for further
proceedings consistent with this opinion.

      A true copy.

            Attest:

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




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