UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 98-11435 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMAR ARREOLA-RAMOS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (2:96-CV-63 & 2:94-CR-36-3) _________________________________________________________________

December 14, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

Appellant Arreola-Ramos urges us to reverse the district

court’s denial of relief concerning a pre-Bailey guilty plea

conviction for “use” of a firearm during a drug-trafficking

offense. See Bailey v. United States,

(1995). We

decline to do so.

The opinions of the magistrate judge and the district

judge correctly explain how both Bailey and the successor case,

Bousley v. United States,

(1998), apply to Arreola’s

petition. Bailey was decided one day before Arreola was sentenced

on a superseding indictment for one count of using and carrying a

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. firearm and one count of using a telephone to facilitate a drug

trafficking crime. On the same day that he pled guilty to this

superseding indictment, a previous indictment, which charged two

separate counts of conspiracy and possession with intent to

distribute cocaine, was dropped. Arreola neither took steps in the

district court to raise a Bailey claim on his firearm conviction,

nor did he file a direct appeal. As a result, Bousley holds that

section 2255 relief was unavailable to Arreola in the absence of

cause and prejudice or actual, factual innocence. Arreola never

alleged legally sufficient “cause” in the district court, because

he claimed -- incorrectly, as it turned out -- that his plea

agreement precluded a direct appeal.

. This

prong of Bousley was inapplicable to Arreola.1

The actual innocence prong of Bousley is also unavailable

to Arreola on the record before us. Bousley points out that a

petitioner claiming factual innocence must be prepared to

establish, in addition to his innocence of the firearms charge,

that he did not commit any more serious crimes whose prosecution

was forgone by the government in exchange for the plea agreement.

Bousley,

. Arreola asserts conclusionally that

because he never pled guilty to the cocaine charges, he was

innocent of them. This assertion flies in the face of the factual

resume accompanying his guilty plea. The factual resume

1 In this court, for the first time, Arreola alleges ineffective assistance of counsel, because he claims that counsel told him he could not maintain a direct appeal. This contention involves factual issues not presented in the district court, and we may not consider it. United States v. Rocha,

(5th Cir. 1997). The same is true for Arreola’s “equal protection” claim regarding the relief given on his brother’s Bailey claim.

2 demonstrates that on one occasion he was involved in a transaction

to sell more than eight ounces of cocaine, and it admits his

longstanding participation in a cocaine distribution conspiracy.

A petitioner may not contradict the facts to which he has sworn

when pleading guilty. United States v. Sanderson,

(5th Cir. 1979). Moreover, as the district court noted,

Arreola was definitely exposed to more lengthy terms of

imprisonment on the cocaine charges than on the charges to which he

eventually pled guilty; the plea bargain reduced his maximum

exposure from sixty years to nine years imprisonment.

For these reasons, Arreola cannot succeed in challenging

his firearm conviction, and the judgment of the district court is

AFFIRMED.

3