                                    PUBLISH

                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                     No. 98-7013

 EDMOND LEON LEOPARD,

             Defendant-Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF OKLAHOMA
                       (D.C. No. 97-CV-149-S)


SUBMITTED ON APPLICATION FOR A CERTIFICATE OF APPEALABILITY

                               Filed March 16, 1999


Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.


PER CURIAM .



      This matter is before the court on defendant’s application for a certificate

of appealability (COA). Defendant seeks to appeal from an order denying his

motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. For
procedural reasons explained below, we grant COA, vacate the order denying the

§ 2255 motion, and remand the case with directions to appoint counsel and

conduct further proceedings.   1
                                   We do not, however, express any opinion on the

ultimate disposition of the substantive grounds raised in the motion.

      This court’s opinion on defendant’s direct appeal sets out the factual

background relating to his prosecution,    much of which need not be repeated here.

See United States v. Leopard , 936 F.2d 1138 (10th Cir. 1991). Defendant was

convicted by a jury of (I) attempting to manufacture methamphetamine;

(II) possessing a listed chemical with intent to manufacture methamphetamine;

(III) possessing with intent to distribute methamphetamine; (IV) using or carrying

a firearm during and in relation to a drug trafficking offense; and (V) being a

felon in possession of a firearm. As for sentencing,

      [t]he presentence report provided for a base offense level of 36
      which was based on testimony that 41.7 pounds of methamphetamine
      could have been produced by [defendant] with the chemicals and
      equipment involved. The district court . . . followed the presentence
      report and sentenced [him] to a term of 327 months as to each of
      counts I and III and 120 months as to each of counts II and V, all
      terms to be served concurrently. As to count IV, [defendant] was
      sentenced to sixty months . . . to be served consecutively to the
      sentences in the remaining counts.


1
      After examining the application and preliminary record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.


                                           -2-
Id. at 1139-40. On appeal, he unsuccessfully challenged the sufficiency of the

evidence on count I; the admission of a pistol found during a warrantless search;

the failure to charge on the lesser included offense of possession; and the amount

of methamphetamine deemed producible for sentencing purposes.         Id. at 1140.

       In March 1997, defendant commenced this § 2255 proceeding. He raised

two grounds for relief, namely, erroneous instruction on “use” of a firearm and

unsubstantiated sentencing for d-methamphetamine, and asserted ineffective

assistance of counsel and an intervening change in law to excuse the omission of

these issues on direct appeal.   See R. Vol. I, doc. 2 (§ 2255 motion) at 5-6; doc. 3

(supporting memorandum). He later sought to amend his § 2255 motion to add

sentencing objections with respect to the listed-chemical and firearm-possession

counts. The district court set the matter for hearing, granted the government’s

application for a writ of habeas corpus ad prosequendum to secure defendant’s

appearance, but denied defendant’s motion for appointment of counsel.

       At the hearing, the district court directed the government to respond to the

motion to amend and took a renewed motion for appointment of counsel under

advisement. Shortly after the government filed its response, the court issued the

order under review, denying relief on the two grounds raised in the initial § 2255

motion and dismissing the case without any reference to the pending motions for

amendment and appointment of counsel.


                                           -3-
                     Denial of Counsel at Evidentiary Hearing

       The district court ordered the evidentiary hearing under       United States v.

Glover , 97 F.3d 1345 (10th Cir. 1996), for the government to offer evidence

satisfying its burden to substantiate an enhanced d-methamphetamine sentence

previously imposed on defendant without such substantiation.          See id. at 1350.

Defendant was entitled to counsel at this hearing.

       As a general matter, simply by ordering a hearing the district court brought

into play the mandate of 28 U.S.C. § 2255 Rule 8(c): “[i]f an evidentiary hearing

is required, the judge shall appoint counsel for a movant who qualifies for the

appointment of counsel under 18 U.S.C. § 3006A[b].”         2
                                                                See Swazo v. Wyoming

Dep’t of Corrections , 23 F.3d 332, 333 (10th Cir. 1994) (following general view

that Rule 8(c) “makes the appointment of counsel mandatory when evidentiary

hearings are required.”). And, more specifically, given its functional overlap with

the deficient sentencing proceeding it essentially served to complete, the “     Glover

hearing” ordered in this case should have shared the latter’s status as “a critical

stage of the criminal proceeding” at which legal representation is constitutionally

required under Gardner v. Florida , 430 U.S. 349, 358 (1977).         Cf. Green v.


2
      Defendant paid the fee for this appeal and, hence, may not be sufficiently
“indigent” for appointment of counsel under 28 U.S.C. § 1915, but there is no
indication he would be disqualified for appointment of counsel under Rule 8(c),
which incorporates the broader “financially unable to obtain counsel” test of
§ 3006A. See United States v. Osuna , 141 F.3d 1412, 1414 (10th Cir. 1998).

                                            -4-
Reynolds , 57 F.3d 956, 961 (10th Cir. 1995) (where state post-conviction hearing

“serves as a substitute” for deficient criminal proceeding, it requires same

constitutional process). Indeed, this court has repeatedly so held in recent

unpublished dispositions.   See United States v. Youngpeter , No. 97-5142, 1998

WL 171838 (10th Cir. April 13, 1998);     see also United States v. Randy Glover ,

No. 97-5239, 1998 WL 544408 (10th Cir. Aug. 27, 1998) (following          Youngpeter );

United States v. Roy Glover , No. 97-5130, 1998 WL 544406 (10th Cir. Aug. 27,

1998) (same). For guidance and consistency, we now acknowledge this circuit’s

practice, and its constitutional rationale, in a precedential decision.

      Under the circumstances, including the additional procedural errors we

identify in connection with some of defendant’s other claims, we deem it most

appropriate to remand directly for the appointment of counsel and the conduct of

another hearing without delay for briefing on this appeal. Practical as well as

legal considerations underlie this decision.

      The only possible defense to the wrongful denial of counsel would involve

the assertion of harmless error, and the uncounseled   Glover hearing has never

been transcribed, much less reviewed, for this purpose. And, to appoint counsel

now to assess and argue the harmfulness of not appointing counsel before strikes

us as a peculiar, if not paradoxical, implementation of the right to representation.

If an appointment is to be made in either event--to assist now on this appeal, or in


                                           -5-
evidentiary proceedings on remand--it is far better to have counsel actually afford

defendant the representation to which he is constitutionally and statutorily entitled

in the district court.

                              Bailey Instructional Error

       The jury convicted defendant of using or carrying a firearm in violation of

18 U.S.C. § 924(c), pursuant to an instruction deficient under the subsequent

definition of “use” in   Bailey v. United States , 516 U.S. 137 (1995). The district

court acknowledged this     error, but refused to grant relief after determining that

even if the jury had found defendant guilty under the erroneous use instruction,

that finding would necessarily have entailed the elements required for a proper

guilt determination on the carry prong of the        § 924(c) charge. This deductive

analysis, requiring the government to demonstrate a necessary inference of

properly found § 924(c) guilt to foreclose relief for an erroneous use instruction,

was at one time the controlling approach to         § 2255 Bailey claims in this circuit.

See United States v. Holland , 116 F.3d 1353, 1358 (10th Cir.),         cert. denied, 118

S. Ct. 253 (1997). However, it has been supplanted by the holding in            Bousley v.

United States , 523 U.S. 614 (1998), that collateral       Bailey claims require actual

innocence of the § 924(c) charge before relief may be granted.           See United States

v. Powell , 159 F.3d 500, 501-02 (10th Cir. 1998),        petition for cert. filed , (U.S.

Jan. 14, 1999) (No. 98-7708). Now,       Bailey claims are foreclosed if the evidence


                                              -6-
was legally sufficient to convict for carry,     see, e.g. , Velasquez v. United States ,

131 F.3d 766, 767 (8th Cir. 1997), or use,       see, e.g. , United States v. Ramos , 147

F.3d 281, 284-85, 287 (3d Cir. 1998).

       Certainly Bousley made it more difficult to obtain collateral relief on the

basis of Bailey instructional error.   3
                                           Significantly, however,   Bousley did not adopt

and subsume the Holland approach under a more rigorous standard--if that were

the case, we could still simply affirm a correct denial of § 2255 relief under the

Holland formulation because, a fortiori, the defendant could not satisfy the higher

Bousley standard. Rather, as explained below,          Bousley applied a tougher but

categorically different   test.

       Under Holland , we took the (tainted) use determination         as a given and

assessed its logical implications for a proper § 924(c) charge, considering the


3
        One circuit has limited Bousley “to its facts,” i.e., to Bailey errors in the
plea context, see Hilliard v. United States , 157 F.3d 444, 450 n.4 (6th Cir. 1998),
which would make it inapplicable here. Such a limitation is unsupportable.
Bousley required actual innocence, as opposed to “cause and prejudice,” for
collateral Bailey claims, because it held Bailey ’s alteration of the meaning of
“use” was “not . . . so novel as to constitute cause to excuse the failure to raise a
Bailey -type challenge on direct appeal.”     Powell , 159 F.3d at 502. As “[t]he
standard for determining ‘cause’ for a procedural default does not depend on the
method of conviction,” United States v. Sorrells , 145 F.3d 744, 750 n.4 (5th Cir.
1998), Bousley ’s conclusion about Bailey ’s novelty, and the resultant foreclosure
of “cause” based thereon, would apply to       any § 2255 motion, whether the reliance
on pre- Bailey law had occurred at trial or in a plea proceeding. Other circuits
have recognized this point explicitly or implicitly.     See, e.g. , DeJesus v. United
States , 161 F.3d 99, 103 (2d Cir. 1998);    Ramos , 147 F.3d 281 (3d Cir.); Sorrells ,
145 F.3d at 750 (5th Cir.); Velasquez , 131 F.3d 766 (8th Cir.).

                                               -7-
record evidence only as necessary to translate the given use findings--themselves

untested for evidentiary sufficiency--into proper use or carry findings. Thus, for

example, in United States v. Durham , 139 F.3d 1325 (10th Cir.) (direct appeal

applying Holland analysis), cert. denied, 119 S. Ct. 158 (1998), this court

(1) noted that the elements of “possession or . . . control” of a firearm “during and

in relation to the . . . drug trafficking crime” were properly included in an

otherwise erroneous § 924(c) instruction; (2) inferred that these elements were

thus “necessarily included in the jury’s verdict” (without any assessment of the

evidentiary sufficiency for these elements); (3) concluded that, as the only

evidence of possession involved a firearm in the defendant’s truck, “the jury’s

finding that [the defendant] was in possession of the firearm necessarily

‘embraces’ the finding that [he] had transported [it];” and (4) held “the jury’s

verdict is the ‘functional equivalent’ of finding a ‘carry’ violation,” and,

accordingly, denied relief.   Id. at 1335-36 (further quotation omitted).

       Under Bousley ’s actual-innocence test, on the other hand, no deductive

demonstration of the    Holland sort is necessary, but, by the same token, the

evidentiary basis for the findings which that demonstration took as given is now

the object of the inquiry, to be assessed for legal sufficiency. Thus, if defendant

can establish his factual innocence of both the use and carry prongs of

§ 924(c)--admittedly no easy task--he is entitled to relief for the acknowledged


                                          -8-
Bailey error regardless of what the jury expressly or impliedly found on the

inadequate evidentiary record.

       Thus, it will not do to review the district court’s deductive       Holland analysis

and, if it is correct, simply affirm with an “a fortiori” gesture toward      Bousley .

Until the trial transcript is obtained and assessed for evidentiary sufficiency on

the use or carry prongs of § 924(c), a definitive ruling on the        Bailey claim would

be premature. As we are remanding the case for appointment of counsel and

further proceedings on the     Glover issue in any event, we deem it the best course

to include the Bailey -Bousley claim in the remand and let counsel develop the

appropriate evidentiary argument before the district court, rather than to attempt a

resolution of the matter on this underdeveloped appeal.        4




4
       We do not deny our authority to conduct an actual-innocence review and, if
appropriate, to affirm under Bousley without remanding. We decide only as a
prudential matter that, under the circumstances, it is preferable to have the issue
fleshed out by counsel in the district court, where thus far it has received no
explicit attention (typically, a Holland analysis of Bailey error would have been
followed by a review for actual innocence, to assess this alternative basis for
excusing a default on direct appeal; however, by conducting its analysis in terms
of “harmless error” rather than cause-and-prejudice, R. Vol. I, tab 22, at 3, the
district court appears to have skirted the actual-innocence inquiry entirely).

                                              -9-
        Listed-Chemical Sentencing Before 1991 Guideline Amendment

      Defendant raised another serious claim in the proposed amendment to his

§ 2255 motion, which the district court failed to address in its dispositive order

even though it had directed the government to respond to the amendment. The

government’s response raised procedural bar concerns, but, if the claim discussed

here is the evident winner it appears to be, such concerns could well be obviated

by defendant’s allegation of ineffective assistance of counsel in his § 2255

motion. See, e.g. , Glover , 97 F.3d at 1348-49, 1350-51;    Rogers v. United States ,

91 F.3d 1388, 1391 (10th Cir. 1996). As explained below, defendant’s claim rests

on specific circuit authority undercutting the sentence he received on one of his

counts of conviction. At the very least, this claim raises a substantial question.

      In 1990, when defendant was sentenced for possession of a listed chemical

with intent to manufacture a controlled substance,     see 21 U.S.C. § 841(d)(2), “the

guideline most readily applicable to drug crimes,” i.e., U.S.S.G. § 2D1.1, “fail[ed]

. . . to cover the described offense,” and there was “no sufficiently analogous

guideline” to apply in accordance with U.S.S.G. § 2X5.1.       United States v. Voss ,

956 F.2d 1007, 1013 (10th Cir. 1992). Thus, in       Voss , we vacated a

listed-chemical sentence calculated like a controlled-substance sentence under

U.S.S.G § 2D1.1 (i.e., base offense level set by reference to controlled substance

produced from listed chemical rather than by reference to listed chemical itself),


                                           -10-
and remanded for re-sentencing under 18 U.S.C. § 3553, which governs

sentencing in the absence of an applicable guideline.         See 956 F.2d at 1008-13.

Indeed, we held this misapplication of the then-controlling law         5
                                                                            to be plain error.

See id. at 1009.

       Defendant asserted in his motion to amend that the same error had been

made in his case. While we are reluctant to say the performance-and-prejudice

test for ineffective assistance of counsel is necessarily satisfied here,         see

generally Strickland v. Washington , 466 U.S. 668, 686-87 (1984), it would be

equally premature to hold to the contrary, particularly without any development

and analysis of the issue by the district court to review. And, once again, it seems

appointed counsel could be of considerable assistance.




5
       An amendment to the guidelines, effective November 1991, obviated the
Voss problem (prospectively) by directing use of       either the listed-chemical
offense level or the controlled-substance offense level, whichever is higher.       See
United States v. Wagner , 994 F.2d 1467, 1471-72 (10th Cir. 1993);         see also Voss ,
956 F.2d at 1011 (noting amendment but holding that “[b]ecause [it] is
substantive rather than merely clarifying, we do not apply it”).

                                             -11-
                                    Conclusion

      In sum, without resolving the underlying merits of the substantial claims

discussed above, we hold that their extant disposition cannot stand and that

counsel should be appointed to assist in their presentation before the district court

on remand. We also note that there are some additional issues, advanced in more

obscure fashion by the pro se defendant, which we have not directly addressed.

While counsel should be free on remand to pursue these, as appropriate, we do

not intend to force or foreclose any determination regarding their substantive and

procedural merit.

      Defendant’s application for a certificate of appealability is GRANTED.

The judgment of the district court is VACATED, and the cause is REMANDED

for further proceedings consistent with this opinion.




                                        -12-
