                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2819
                                    ___________

Jerry J. Latorre,                        *
                                         *
             Appellant,                  * Appeal from the United States
                                         * District Court for the
      v.                                 * Western District of Missouri.
                                         *
United States of America,                *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: September 15, 1999
                                  Filed: October 29, 1999
                                   ___________

Before BOWMAN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

       This case arises from Jerry J. Latorre's guilty plea to a firearms charge in
connection with drug trafficking under 18 U.S.C. § 924(c)(1). Latorre filed a motion
pursuant to 28 U.S.C. § 2255 in the District Court to vacate, set aside, or correct his
sentence. The District Court denied the motion as procedurally defaulted. Shortly
thereafter, the Supreme Court decided Bousley v. United States, 523 U.S. 614 (1998),
and clarified the procedural default rule. We vacate the order denying Latorre's § 2255
motion and remand the case to the District Court for further consideration in light of
Bousley.
                                            I.

       In 1994, a grand jury returned an eleven-count indictment against Latorre
containing various drug and weapons charges. On January 5, 1995, pursuant to a plea
agreement, Latorre pled guilty to Count One, conspiracy to distribute narcotics near a
protected location, and Count Three, carrying or using a firearm during and in relation
to drug-trafficking crimes under § 924(c)(1). In exchange, the government dropped the
other charges. Latorre was sentenced to thirty months on the conspiracy charge and
a consecutive sixty months on the firearms charge. Later that year, the Supreme Court
issued its opinion in Bailey v. United States, 516 U.S. 137 (1995), clarifying the reach
of § 924(c)(1).

        After serving thirty months, Latorre filed a motion under 28 U.S.C. § 2255
seeking to set aside the sixty-month sentence on the ground that there is no factual basis
to support the § 924(c)(1) charge under Bailey. On May 9, 1997, relying on Bousley
v. Brooks, 97 F.3d 284 (8th Cir. 1996), the District Court denied Latorre's motion on
the ground that his substantive claims were procedurally defaulted. The court, correctly
applying our decision in Bousley, reasoned that Latorre's failure to appeal his sentence
directly waived his claims in the absence of a showing of cause and actual prejudice.
Shortly thereafter, on May 18, 1997, the Supreme Court reversed Bousley and held that
a defendant who pled guilty, pre-Bailey, to a § 924(c)(1) charge may escape procedural
default for failure to appeal if the defendant can establish actual innocence. Bousley
v. United States, 523 U.S. 614, 622-24 (1998). Latorre then timely appealed the
District Court's denial of his § 2255 motion. Appellant argues that, under Bousley, he
is entitled to an evidentiary hearing on his claim of actual innocence of the § 924(c)(1)
charge.




                                           -2-
                                            II.

       The government argues first, that Latorre already received his hearing, and
second, that no evidentiary hearing is necessary because the record proves Latorre is
guilty.1 Both arguments fail.

      1
           At oral argument, the Court, sua sponte, raised the question presented by
Latorre's explicit waiver in his plea agreement of both his direct-appeal rights and his
collateral-attack rights under § 2255. The government did not raise this question in the
District Court, much less in this appeal. We are puzzled as to why the government
would bargain for and obtain such a waiver as part of a plea agreement and then not
seek to enforce the waiver. Moreover, we are less than ecstatic that this appeal has
come to us on the merits of Latorre's § 2255 motion without our being afforded an
opportunity to rule on the important threshold question of whether this § 2255 motion
is barred by Latorre's waiver, agreed to by him as part of the price for a favorable plea
agreement. This Court, of course, does not normally address issues not raised in the
district court nor does it normally address issues not raised by a litigant on appeal, see
United States v. Gutierrez, 130 F.3d 330, 332 (8th Cir. 1998); Stephenson v.
Davenport Community Sch. Dist., 110 F.3d 1303, 1306-07 n.3 (8th Cir. 1997), and we
shall not do so here.
         We note that this Court has not yet addressed the question of a defendant's
power to waive collateral-attack rights in a plea agreement. Our decisions upholding
waivers of direct-appeal rights have explicitly noted the availability of § 2255 collateral
attack. See United States v. Michelsen, 141 F.3d 867, 872 n.3 (8th Cir.) ("Nor would
[Michelsen's waiver] prevent a challenge under 28 U.S.C. § 2255 to an 'illegal sentence'
. . . ."), cert denied, 119 S. Ct. 363 (1998); United States v. Rutan, 956 F.2d 827, 829
(8th Cir. 1992) ("We also note that an illegal sentence can still be challenged under 28
U.S.C. § 2255 for habeas corpus relief, so a defendant is not entirely without recourse
from an erroneous sentence."). Other courts have upheld collateral-attack waivers in
some circumstances but not in others. Compare United States v. Wilkes, 20 F.3d 651,
653 (5th Cir. 1994) (concluding that direct-appeal and § 2255 rights are
indistinguishable), with Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)
(noting that defendant could not waive collateral-attack rights with regard to ineffective
assistance of counsel relating to negotiation of waiver) and United States v. Abarca,
985 F.2d 1012, 1014 (9th Cir.) (declining to hold that defendant's waiver may
"categorically" foreclose claim to ineffective assistance of counsel or involuntariness),
                                            -3-
       The District Court did hold a hearing on Latorre's § 2255 motion. But given our
panel decision in Bousley, the District Court only made findings on cause and
prejudice. The court did not hold a hearing on actual innocence; the question,
therefore, is whether one is necessary.

       This Court reviews de novo the denial of a § 2255 motion without an evidentiary
hearing and affirms only if the motion, files, and record conclusively show the movant
is not entitled to relief. See United States v. Duke, 50 F.3d 571, 576 (8th Cir.), cert.
denied, 516 U.S. 885 (1995). In some cases, the clarity of the existing record on
appeal makes an evidentiary hearing unnecessary. See, e.g., United States v. Apker,
174 F.3d 934, 937-41 (8th Cir. 1999) (concluding that careful plea colloquy along with
"lengthy record" arising from "spate of appeals" by members of large conspiracy
combined to obviate any need for remand to district court on actual innocence under
§ 924(c)(1)). Absent such clarity, an evidentiary hearing is required. See Hohn v.
United States, No. 96-3118, slip. op. at 5 (8th Cir. Oct. 5, 1999) (remanding case to
district court for "fact-bound analysis" of actual innocence); Johnson v. United States,
186 F.3d 876, 876 (8th Cir. 1999) (reversing District Court's grant of § 2255 motion
because no evidentiary hearing was held). At such a hearing, the defendant must
establish that, "in light of all the evidence, it is more likely than not that no reasonable
juror would have convicted him." Bousley, 523 U.S. at 623 (internal quotations
omitted). If, as part of the plea agreement, the government withdrew more serious


cert. denied, 508 U.S. 979 (1993). Moreover, even if generally valid, waivers of
collateral-attack rights would be enforceable only if knowing and voluntary. Cf.
Michelsen, 141 F.3d at 871 (direct-appeal waivers enforceable only if knowing and
voluntary); Rutan, 956 F.2d at 829 (same). Because the government did not raise the
issue in the District Court, that court did not determine whether the waiver was
knowing and voluntary, leaving the record incomplete. See Hunter v. United States,
160 F.3d 1109, 1113 (6th Cir. 1998) (declining to consider waiver for this reason, inter
alia). Although we do not attempt to decide the issue, on remand the government
remains free to assert its claim that Latorre's § 2255 motion is barred by his explicit and
unequivocal waiver of his § 2255 rights.
                                            -4-
charges, the defendant must demonstrate actual innocence of those charges as well.
See id. at 624. The primary source of information for the District Court is the plea
proffer record. See id. at 624 n.3. The government, however, is permitted to present
"any admissible evidence of petitioner's guilt even if that evidence was not presented
during petitioner's plea colloquy and would not normally have been offered before [the
Supreme Court's] decision in Bailey." Id. at 624.

       The record here contains two relevant items of proof. First, the District Court
inquired into the factual basis of Latorre's plea pursuant to Fed. R. Crim. P. 11(f).
During this proceeding, Latorre admitted his "use" of a firearm during and in relation
to drug-trafficking offenses. Specifically, he admitted that he had a firearm "with him"
during the commission of drug-trafficking offenses. Second, Latorre also admitted
specific conduct in an affidavit submitted to the District Court as part of the § 2255
proceedings. These admissions establish only the following: Latorre owned guns and
kept them in his home, he sold drugs in his home, and, at times, his customers may
have seen his guns in his home. For the reasons below, Latorre's various admissions
do not conclusively show that he will be unable to prove his innocence of the §
924(c)(1) use or carry charge.2 The government alleges that it has further proof, and
even specifies the content of witnesses' potential testimony. However, these witnesses
were not heard at the § 2255 hearing in the District Court. Assertions by counsel
cannot foreclose an evidentiary hearing, at which such testimony can be taken and
subject to cross-examination.




      2
        Latorre's indictment charged him with both using and carrying a firearm under
§ 924(c)(1), so his sentence may be upheld on either ground. See United States v.
Larkin, 118 F.3d 1253, 1255 (8th Cir.), cert. denied, 118 S. Ct. 641 (1997); see also
United States v. Sanders, 157 F.3d 302, 304 (5th Cir. 1998); Arango-Alverez v. United
States, 134 F.3d 888, 891 n.2 (7th Cir. 1998).
                                          -5-
       We start with Latorre's Rule 11(f) plea colloquy. The government's proffer of
proof contains little about the § 924(c)(1) count. Specifically, the government's
attorney stated the following:

      Latorre had with him on various times when he sold marijuana and other
      drugs, marijuana specifically, to an undercover agent or to a confidential
      informant, he had firearms with him. Specific firearms listed in Count
      Three were a .22 caliber North American Arms derringer and two nine
      millimeter pistols which where used during and in relationship with drug
      trafficking offenses.

Tr. of Guilty Plea and Sentencing at 14-15. Latorre agreed to this description without
further elaboration. Id. at 16.

       Two parts of the plea colloquy require analysis. First, it is plain that Latorre's
agreement to the bare legal conclusion that he "used" firearms "during and in
relationship with" drug-trafficking offenses is insufficient to foreclose his claim of
actual innocence. At the time of his plea, this Court's precedent dictated that
§ 924(c)(1) "use" merely required "that the weapon be present and available, in the
house in which the drugs and cash are located, in the event it is needed." United States
v. Johnson, 12 F.3d 827, 832 (8th Cir.), cert. denied, 511 U.S. 1095 (1994). Bailey,
however, specifically rejected that meaning of "use," requiring "active employment" of
a firearm. Bailey, 516 U.S. at 148-49. Given the change in the governing definition,
Latorre's pre-Bailey admission that he "used" a firearm is not inconsistent with his
innocence.

        Second, Latorre's admission during the plea colloquy that he had guns "with him"
is also inconclusive. This statement demonstrates nothing more than possession, which
is insufficient to prove either "use" or "carry." See Bailey, 516 U.S. at 143 (Congress
could have replaced "use or carry" with "possess" but chose not to do so); see also id.


                                           -6-
at 146 (interpreting "use" more narrowly than possession preserves meaningful role for
"carry").

      A more serious issue is the content of Latorre's affidavit submitted with his pro
se motion to reconsider the denial of his § 2255 motion. It contains the following
language:

      That further, during several of the marijuana sales that I made to my
      friends, firearms may have been visible to the participants; but these
      firearms were present in the basement only incidentally to the drug
      transactions and they were never a part of, or used to facilitate, the drug
      transaction.

This "display" of weapons, the government asserts, constitutes use under Bailey. The
government's position presumes a per se rule that the "visible presence" of a firearm
during a drug sale constitutes use during and in relation to the drug crime. Such a
holding would be contrary to Bailey and the cases that follow it.

       The starting point, of course, is the interpretation of § 924(c)(1) provided by the
Supreme Court. The core holding of Bailey is that "use" means "active employment"
of a firearm, not "inert presence." Bailey, 516 U.S. at 143-50. Active employment
includes "brandishing, displaying, bartering, striking with, and most obviously, firing
or attempting to fire a firearm." Id. at 148. A defendant does not violate § 924(c)(1)
"merely [by] storing a weapon near drugs or drug proceeds," or by "placement of a
firearm to provide a sense of security or to embolden." Id. at 149.

        The Court's further explanation is instructive: "[A] reference to a firearm
calculated to bring about a change in the circumstances of the predicate offence is a
'use,' just as the silent but obvious and forceful presence of a gun on a table can be a
'use.'" Id. at 148 (emphasis added). This sentence has been described as endorsing the
"threat-as-use" theory. See Polanco v. United States, 935 F. Supp. 372, 374 (S.D.N.Y.
                                           -7-
1996), aff'd, 112 F.3d 505 (2d Cir.), cert. denied, 521 U.S. 1128 (1997). A reference
to a firearm intended to change behavior is a 'use' because such a reference is a threat
by definition, but a gun on a table merely can be a 'use' because, depending on the
situation, it might not be threatening at all. If the visible presence of a firearm is
accompanied by circumstances that combine to create an implicit threat, then the
firearm has been "used." Otherwise, the firearm is merely present.

       Holding that visible presence alone constitutes "use" would be inconsistent with
the Supreme Court's repeated emphasis on "active employment." Visible presence
alone is passive, just like simple possession. "The fact that a firearm is visible does not
necessarily mean that the presence of the firearm was 'disclosed' in a 'calculated'
manner to 'bring about a change in the circumstances of the predicate offence.' [Bailey,
516 U.S. at 148.] Disclosure of a firearm suggests an action by the defendant, while
mere visibility of a weapon does not." United States v. French, No. 95-30386, 1996
WL 453441, *2 (9th Cir. Aug. 5, 1996).

        Two decisions of this Court confirm the importance of factors beyond the mere
visibility of a weapon. In United States v. Czeck, 105 F.3d 1235 (8th Cir. 1997), we
upheld a "use" conviction under § 924(c)(1) where the defendant showed a weapon to
his drug customers. We relied on the testimony of two customers that Czeck's display
of his weapon affected their dealings with him. "By making it plain to his customers
that he was armed and willing to defend his business, Czeck discouraged them from
any attempt to rob him and effectively may have warned them that negotiation over the
price and quality of his wares was not encouraged." Id. at 1241. Similarly, in United
States v. Aikens, 132 F.3d 452 (8th Cir.), cert. denied, 119 S. Ct. 114 (1998), we
affirmed a conviction under § 924(c)(1). There, an undercover officer saw a shotgun
next to Aikens during a drug transaction. We took care to ensure that "Aikens did more
than merely store his shotgun near the drug crime," noting both that the weapon was
close to Aikens, so that "he could immediately fire it if anything went wrong," and that
Aikens told the undercover officer that the gun was "for his protection." Id. at 454.

                                            -8-
Therefore, we concluded that the gun was "'calculated to bring about a change in the
circumstances' of the underlying drug offense." Id. (quoting Bailey, 516 U.S. at 148).
We also quoted the passage from Czeck, supra, concerning the communicative
purposes of the weapons, and concluded that "Aikens' weapons served similar purposes
here." Id.

       The Seventh Circuit has addressed the "visible presence" question more directly.
In Stanback v. United States, 113 F.3d 651 (7th Cir. 1997), the government attempted
to support a § 924(c)(1) conviction through evidence that a firearm was plainly visible
on a coffee table when police arrived on the scene. The court acknowledged Bailey's
reference to a "silent but obvious and forceful presence of a gun on a table," but, citing
our opinion in Czeck, reasoned as followed:

      What is missing [here], however, is any evidence from which one might
      reasonably infer that the placement of the gun on the coffee table was
      anything more than fortuitous—in other words, that Stanback placed it
      there (if indeed he placed it there) in open view to convey the same type
      of intimidating message that a bank robber sends when he declares to a
      teller, 'I have a gun.'

Id. at 656. The court admitted the possibility that the gun was intended to serve such
an intimidating purpose, but concluded that, in the absence of evidence, "only
speculation will permit us to construe the mere presence of the gun on the table as the
kind of 'active employment' that Bailey requires." Id.; see also United States v.
Benboe, 157 F.3d 1181, 1185 (9th Cir. 1998) (concluding that evidence that firearm
was found "in or on furniture" near drugs not sufficient to foreclose hearing on actual
innocence).

      In support of its contention that the visible presence of a gun is always use, the
government relies only on a divided panel of the Fifth Circuit. In United States v.
Wainuskis, 138 F.3d 183 (5th Cir. 1998), the majority found a "use" under § 924(c)(1)

                                           -9-
where a co-conspirator was seen with a loaded gun visible within arm's reach. See id.
at 188-89. The dissent argued that the firearm "was not 'used' just because it was
sitting in plain view," and that "'active employment' requires something more than
simply being within arm's reach of a visible gun." Id. at 196 (DeMoss, J., dissenting).
Even the majority opinion, however, does not necessarily stand for the proposition that
any visible presence of a gun is active employment; it may have been reasonable, in the
circumstances, to infer an implied threat from a loaded weapon in close proximity to
the co-conspirator. See id. at 188-89. To the extent that Wainuskis holds any firearm
in plain view is "used," we disagree.

       Because the current record does not conclusively show that Latorre is entitled
to no relief under § 2255, unless Latorre is found on remand to have waived his § 2255
rights (see footnote 1, supra), he is entitled to an evidentiary hearing on his claim of
actual innocence.

                                          III.

      The District Court's denial of Latorre's § 2255 motion is vacated, and the matter
remanded to the District Court for (1) resolution of the waiver issue discussed in
footnote 1 of this opinion, if the government chooses to raise that issue, and (2) an
evidentiary hearing on Latorre's claim of actual innocence, unless Latorre's § 2255
motion does not survive consideration of the waiver issue. If Latorre's § 2255 motion
survives his apparent waiver of his § 2255 rights, then to obtain § 2255 relief, Latorre
must show that he is actually innocent of both "use" and "carry" under § 924(c)(1), and
also must show that he is actually innocent of any more serious charges that were
dismissed pursuant to his plea agreement. See Bousley, 523 U.S. at 624.




                                          -10-
LAY, concurring in the result only.

       I agree that Latorre must show that he is actually innocent of both the “use” and
“carry” prongs under § 924(c)(1) and must also show that he is actually innocent of
any more serious charges that were dismissed pursuant to his plea agreement. This is
the holding of Bousley v. United States, 523 U.S. 614, 622-24 (1998).

        I write separately because I cannot agree with the pure dicta of footnote one. The
very essence of judicial restraint is not to raise issues that were neither raised by the
parties in the district court nor briefed to this court. The majority acknowledges this
concern as addressed by our cases, but treats this as a rule of convenience rather than a
principle of law. The majority uses the footnote to chastise the attorney representing the
United States for failure to raise the issue of defendant’s waiver of his right to file either
a direct or collateral attack on his sentence as contained in his plea agreement. The
majority, for whatever reason, now urges the United States to raise such an issue on
remand.3 The United States is represented in this case by a well-qualified Assistant
United States Attorney who appeared before this court under the direction of a very
dedicated and competent United States Attorney. This criticism of counsel is totally
bewildering to me. The United States needs no assistance from this court as to what
litigation strategy it should use in federal court. It is nothing more than pure speculation
as to what litigation strategy the government has adopted. However, there could be many
reasons why the government would not raise the issue of waiver here. Cf. United States
v. Michelsen, 141 F.3d 867, 872 n.3 (8th Cir.) (a § 2255 challenge to illegal sentence



       3
        It is ironic to me that in a § 2255 case a petitioner may not raise an issue on
appeal when the issue has been procedurally defaulted in the district court, yet the
court expressly ignores this principle when dealing with the United States government.
See Hunter v. United States, 160 F.3d 1109, 1114 (6th Cir. 1998) (finding government
forfeited waiver argument by not raising it in § 2255 motion in district court). This is
hardly an acknowledgment of a “level playing field.”
                                            -11-
cannot be waived; one who is actually innocent of a crime may always challenge an
illegal sentence), cert. denied, 119 S. Ct. 363 (1998).

      Justice Scalia once wrote: “The rule that points not argued will not be considered
is more than just a prudential rule of convenience; its observance, at least in the vast
majority of cases, distinguishes our adversary system of justice from the inquisitorial
one.” United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J. concurring).

      A true copy.

             Attest:

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




                                          -12-
