183 F.3d 1145 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.SALVADOR ROMERO, Defendant-Appellant.
No. 96-56392
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Submitted July 12, 19991 Pasadena, CaliforniaDecided July 20, 1999

Salvador Romero, Pro per, Fort Worth, Texas, defendantappellant.
Becky S. Walker, Assistant United States Attorney, Criminal  Appeals Section, Central District of California, Los Angeles,  California, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California. James M. Ideman, District Judge, Presiding.  D.C. No. 96-CV-02461-JMI.
Before: Melvin Brunetti, Pamela Ann Rymer, and Barry G. Silverman, Circuit Judges.
SILVERMAN, Circuit Judge:


1
Salvador Romero appeals pro se the denial of his 28 U.S.C.  S 2255 motion challenging the validity of his guilty plea to  use of a firearm in relation to a drug offense. See 18 U.S.C.  S 924(c)(1). Romero correctly notes, and the government concedes, that his conduct is insufficient to sustain the conviction  under the "use" prong. Moreover, although Romero admitted  facts sufficient to satisfy the "carry" prong of S 924(c), we  conclude that his conviction cannot be sustained under this  theory because the government only charged Romero with  "use" of a firearm. Thus, we reverse and remand for vacatur  and resentencing on the substantive drug charge.

FACTUAL AND PROCEDURAL BACKGROUND2

2
On December 18, 1992, Romero was charged with intent to  distribute methamphetamine, in violation of 21 U.S.C.  S 841(a)(1), and using a firearm in connection with the underlying drug offense, in violation of 18 U.S.C. S 924(c)(1). With  regard to the S 924(c) charge, the indictment alleged that  Romero "knowingly used a firearm, namely a 9mm handgun,   model TA90, serial G21944 during and in relation to a drug  trafficking crime, namely the possession with intent to distribute . . . methamphetamine."


3
On February 11, 1993, Romero pled guilty to the foregoing  counts, admitting that he was carrying a loaded 9mm handgun  in his waistband when he was arrested. The district court  accepted Romero's plea and sentenced him to 180 months imprisonment.


4
After Romero was convicted and sentenced, the Supreme  Court held that "use of a firearm" requires a showing of active  employment of a firearm, and that mere possession is insufficient to sustain a conviction pursuant to S 924(c). See Bailey  v. United States, 116 S. Ct. 501 (1995). As such, Romero filed  a S 2255 motion to set aside his conviction. Finding that  Romero's conduct and admission could sustain his conviction  on a "carry theory," the district court denied relief. This  timely appeal follows.

DISCUSSION

5
Because the government concedes that there is insufficient  evidence to sustain Romero's conviction on the "use" prong,  the only question before us is whether his conviction may be sustained under a carry theory. We hold that it cannot.


6
Although we have not directly addressed the issue, three other circuits have. See Rattigan v. United States, 151 F.3d  551, 556-57 (6th Cir. 1998); United States v. Golden, 102  F.3d 936, 948 (7th Cir. 1996); United States v. Wacker, 72  F.3d 1453, 1464 n.8 (10th Cir. 1995).


7
In Wacker, the evidence at trial clearly established that the  defendant was carrying the firearm on her person. 72 F.3d at  1464. However, the Tenth Circuit refused to remand for  reconsideration whether the defendant could be liable on a  carry theory because she was only charged with using the fire arm. See id. at 1464 n.8. Likewise, in Golden and Rattigan,  the Seventh and Sixth Circuits, respectively, reversed defendants' convictions outright where the government only  charged them with use of a firearm, despite the fact that evidence supported a finding of carrying. See Golden, 102 F.3d  at 948; Rattigan, 151 F.3d at 556-57.


8
The reasoning of our sister circuits is persuasive and  finds support in the recent Supreme Court decision of Bousley  v. United States, 118 S.Ct. 1604 (1998). In Bousley, the Court  addressed the "permissibility of post-Bailey collateral attacks  on S 924(c)(1) convictions obtained pursuant to guilty pleas."  Id. at 1608-09. The Court held that a criminal defendant who  has pled guilty to a S 924(c)(1) charge is entitled to habeas  relief if he can establish "actual innocence" of the charge  under Bailey. Where the government charged only the use of  a firearm, a "petitioner need demonstrate no more than he did  not `use' a firearm as that term is defined in Bailey." Id. at 1612. Thus, Romero is entitled to have his conviction vacated  if he can demonstrate, in light of all the evidence, that "it is  more likely than not that no reasonable juror would have convicted him." Id. at 1611.


9
Here, Romero was charged only with use of a firearm.  Indisputably, the evidence is insufficient to support his conviction under the "use" prong of S 924(c)(1). Because Romero was not charged with carrying a firearm, we reverse and  remand to the district court with instructions to vacate the  defendant's conviction as to this count. See United States v.  Barron, 172 F.3d 1153, 1157-58 (9th Cir. 1999) (en banc)  (holding that proper remedy in S 2255 motion pursuant to  Bailey is vacatur of conviction, rather than recission of entire  plea agreement). Further, this matter is remanded to the district court for re-sentencing on Count I, the substantive drug charge. See United States v. Handa, 110 F.3d 42, amended, 122 F.3d 690 (9th Cir. 1997).


10
REVERSED AND REMANDED.



Notes:


1
The panel is of the unanimous opinion that this case is suitable for Disposition without oral argument. Fed. R. App. P. 34(a)(2).


2
 Because most of the underlying facts are undisputed, we need only set  forth those facts and the procedural history relevant to our resolution of  this appeal.


