                       UNITED STATES COURT OF APPEALS
Filed 1/24/97
                                        TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                        No. 96-1391
          v.                                                 D. Colorado
 ANTHONY JOHN DAVID,                                    (D.C. No. 96-S-1113)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.

      Anthony J. David appeals the district court’s denial of his pro se motion to vacate,

set aside or correct his sentence pursuant to 28 U.S.C. § 2255. David contends that the



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
court erred in finding that there was a factual basis to support his plea to using a firearm

during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). We

grant a certificate of appealability and affirm.



                                     BACKGROUND

       On December 6, 1993, David was charged in a six count indictment as follows:

Count One -- conspiracy to manufacture and distribute methamphetamine and aiding and

abetting the distribution and manufacture of methamphetamine in violation of 21 U.S.C.

§ 846; Count Two -- possession with intent to distribute methamphetamine in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count Three -- using a firearm (a destructive

device under 18 U.S.C. § 921(a)(4)) during or in relation to a drug trafficking crime in

violation of 18 U.S.C. §§ 924(c), 2; Count Four -- possession of an unregistered firearm

(a destructive device under 18 U.S.C. § 921(a)(4)) in violation of 26 U.S.C. § 5861(d) and

18 U.S.C. § 2; Count Five -- using or carrying one or more often listed firearms during

and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); and Count

Six -- felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See

Government’s Resp. to 28 U.S.C. § 2255 motion, filed July 1, 1996 (“Response”),

Attach. 1.

       On February 24,1994, David and the government entered into a plea agreement

whereby the government dismissed counts two and three, and David agreed to enter guilty


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pleas to the remaining counts.1 Response, Attach. 2 at 1-2. Respecting count five, David

correctly points out that the agreement does not precisely track the charge’s alternative

“use or carry” language. Rather, the agreement provides for David’s guilty plea to “using

a firearm during and in relation to a drug trafficking crime, in violation of Title 18,

United States Code, Section 924(c).” Id. The judgment restates the terms of the plea

agreement, providing that “the defendant is adjudged guilty of . . . 18 U.S.C. § 924(c)

Using a firearm during and in relation to a drug trafficking crime.” Response, Attach. 3.

       The plea agreement stipulates the following facts relevant to count five:

             On October 14, 1993, Agents of the Drug Enforcement
       Administration . . . executed a search warrant at 8514 County Road X,
       Lincoln County, Rush, Colorado. Law enforcement agents arrested the
       Defendant, Anthony John David . . . . Agents seized a clandestine
       methamphetamine lab, numerous firearms, books and video tapes. The
       clandestine lab was located in the barn . . . .

              Agents also recovered numerous firearms in the house[2] where the
       Defendant was arrested . . . . Video tapes seized during the execution of the
       search warrant show the display and firing of some of the [listed firearms]
       in close proximity to the barn which contained the lab.

               The Defendant, David, is shown in the video tapes handling and
       discharging several [of the listed] firearms during October, 1993, at the
       farm in Rush, Colorado. In October, 1993 the Defendant was a convicted
       felon . . . .

Id., Attach. 2 at 3-4.




       1
           David does not attack his pleas to counts one, four, and six.
       2
        These are the firearms listed in count five. Response at 2.

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                                        DISCUSSION

       Ordinarily a defendant’s unconditional guilty plea waives all nonjurisdictional

challenges to his conviction. United States v. Wright, 43 F.3d 491, 494 (10th Cir. 1994).

Accordingly, a defendant is generally precluded from collaterally attacking a voluntary

and intelligent guilty plea. United States v. Barnhardt, 93 F.3d 706, 708 (10th Cir. 1996)

(citing United States v. Broce, 488 U.S. 563, 565 (1989)). However, we do not bar a

collateral attack if the factual basis for the plea is later determined not to constitute a

crime. Id. In this case, David contends that Bailey v. United States, 116 S. Ct. 501

(1995) changed Tenth Circuit law regarding what facts constitute “use” of a firearm in

relation to a drug trafficking offense under 18 U.S.C. § 924(c), and that there is no factual

basis for finding that he “used” a firearm under Bailey’s definition.3 We have previously

held we will entertain such claims, and that Bailey applies retroactively to cases on

collateral review. Barnhardt, 93 F.3d at 708. Our analysis treats the district court’s

acceptance of a guilty plea as a finding of an adequate factual basis for the plea, and we



       3
        At the time David entered his plea, the government could prove a defendant’s
“use” under § 924(c) by demonstrating his “ready access” to a firearm which was an
integral part of the drug trafficking crime and which increased the likelihood of that
crime’s success. United States v. Richardson, 86 F.3d 1537, 1547 (10th Cir.) (citing
United States v. McKinnell, 888 F.2d 669, 675 (10th Cir. 1989)), cert. denied, 117 S. Ct.
588 (1996). Bailey v. United States, 116 S. Ct. 501 (1995) has overruled our prior cases,
making it clear that a conviction for “use” under § 924(c) does not subsume “carry” and
cannot be predicated upon mere possession. Id. at 508-09. Rather, “use” requires a
showing that the defendant “actively employed” (e.g. brandished, displayed, fired or
attempted to fire) the firearm. Id. at 508.

                                               -4-
review that finding for clear error. A finding of fact is clearly erroneous if the record

contains no support for it, or if our review of the evidence leaves us with “a definite and

firm conviction that a mistake has been made.” Id. at 710.

       In his brief to us, David concedes that the seized videos show him “using”

firearms. Moreover, the facts stipulating that he discharged the firearms clearly support

such a finding. Appellant’s Br. at 11. Nonetheless, David attempts to expand Bailey’s

reach beyond the question of whether he “used” a firearm, contending that the videos

offer no evidence that his recorded use was “in relation to” a drug trafficking crime.

However, Bailey did not address the “in relation to” element of § 924(c). Rather, at the

time David entered his plea, the Court had clearly defined the expansive parameter of that

element:

       According to Webster's, "in relation to" means "with reference to" or "as
       regards." Webster's New International Dictionary, at 2102. The phrase "in
       relation to" thus, at a minimum, clarifies that the firearm must have some
       purpose or effect with respect to the drug trafficking crime; its presence or
       involvement cannot be the result of accident or coincidence. As one court
       has observed, the "in relation to" language "allay[s] explicitly the concern
       that a person could be" punished under § 924(c)(1) for committing a drug
       trafficking offense "while in possession of a firearm" even though the
       firearm's presence is coincidental or entirely "unrelated" to the crime.
       United States v. Stewart, 779 F.2d 538, 539 (CA9 1985) (Kennedy, J.).
       Instead, the gun at least must "facilitat[e], or ha[ve] the potential of
       facilitating," the drug trafficking offense. Id., at 540. Accord, United
       States v. Ocampo, 890 F.2d 1363, 1371-1372 (CA7 1989); 957 F.2d, at 837.

Smith v. United States, 508 U.S. 223, 237-38 (1993); see also Richardson, 86 F.3d at

1548 n.5 (noting that the “question of whether a weapon was used . . . ‘during and in


                                             -5-
relation to’ a drug trafficking offense” is distinct from our pre-Bailey “use” requirement

that the firearm be an integral part of the criminal undertaking).

       Accordingly, since Bailey did not affect the clearly established “in relation to”

element of § 924(c), the general rule respecting guilty pleas applies, and David’s plea

constituted a waiver of any claim that there was no factual basis for that element of the

offense.

       AFFIRMED.

                                                   ENTERED FOR THE COURT


                                                   Stephen H. Anderson
                                                   Circuit Judge




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