                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              NOV 5 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 98-5046
                                                           (N.D. Okla.)
 GARY J. PHILLIPS,                                   (D.Ct. No. 92-CR-105-E)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, 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. The case is therefore

ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
       Gary Phillips appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside or correct his sixty-month sentence stemming from his

conviction on two counts of carrying a firearm during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1). Mr. Phillips challenges

the district court’s denial of a new trial on grounds the jury was improperly

instructed regarding “use” of a firearm, in view of the Supreme Court’s opinion in

Bailey v. United States, 516 U.S. 137 (1995).



       Besides his Bailey challenge, Mr. Phillips for the first time on appeal

alleges the evidence in his case is insufficient to support a conviction of “using”

or “carrying” a firearm, even under a proper jury instruction. Specifically, Mr.

Phillips claims the jury must find not only that he possessed a gun, but he

transported the gun in a vehicle; the vehicle was driven by him; he sold drugs

from the vehicle where the gun was found; and he “facilitated” the use of the gun

beyond merely having it placed near him or in using the grip of the gun to store

drugs. We grant Mr. Phillips a certificate of appealability 1 only as to his Bailey

argument, and affirm the district court’s order denying his § 2255 motion.




       1
         Pursuant to Fed. R. App. P. 22(b), we treat Mr. Phillips’ notice of appeal as a
request for a certificate of appealability under 28 U.S.C. § 2253(c).


                                            -2-
      Mr. Phillips’ two firearm convictions were based on two separate incidents.

On June 8, 1992, Mr. Phillips was a passenger in a vehicle en route to an

apartment building to sell drugs. After witnessing three traffic violations, a Tulsa

policeman pulled the vehicle over and observed Mr. Phillips bend down to put

something under his seat. After the driver and Mr. Phillips exited the vehicle, an

officer saw an Intratec Tech .22 caliber pistol in plain view sticking out from

under the front passenger seat where Mr. Phillips sat. The pistol was loaded and

contained several rocks of cocaine in the grip handle.



      The second incident occurred a month later, on July 13, 1992, when a

confidential informant told the Tulsa police that a young man with a gun was

inside a residence selling crack cocaine. On invitation, the officers entered the

residence and bedroom, finding Mr. Phillips seated on a chair with a pink plastic

tray on his lap cutting a large piece of crack cocaine with a razor blade. A

chrome or silver loaded .25 caliber pistol was next to him in the chair. On

noticing the officers, Mr. Phillips tossed the tray and gun under the bed where the

police recovered them.



      Based on these two incidents, Mr. Phillips received an indictment on two

counts of “carrying” a firearm in violation of § 924(c)(1). At trial, the jury was


                                         -3-
instructed on the elements of “carrying” a firearm in commission of a drug

trafficking crime. Also included in the jury instruction was reference to the word

“use,” even though the elements of “using” a firearm in commission of a crime

were not articulated, including “active employment” of such firearm. 2 Following

Mr. Phillips’ conviction and sentence, the Supreme Court issued its opinion in

Bailey, holding a conviction for “use” of a firearm under § 924(c) requires

evidence sufficient to show an “active employment” of the firearm. Bailey, 516

U.S. at 143. Mr. Phillips filed his § 2255 motion with the district court based on

that decision, claiming the evidence was insufficient to support a conviction for

using or carrying a firearm where no evidence shows he “actively employed” the

firearm. In response to his motion, the government admitted the instructions

improperly referred to “use,” but argued such error is irrelevant as Mr. Phillips


      2
          The jury instruction at issue states, in relevant part:

             In determining whether the Defendant used or carried a firearm, you
      may consider all of the factors received in evidence in the case including
      the nature of the underlying drug trafficking crime alleged, the proximity of
      the Defendant to the firearm in question, the usefulness of the firearm to the
      crime alleged, and the circumstances surrounding the presence of the
      firearm.

             The government is not required to show that the Defendant actually
      displayed or fired the weapon. The government is required, however, to
      prove beyond a reasonable doubt that a firearm was in the Defendant’s
      possession or under the Defendant’s control at the time the drug trafficking
      crime was committed.


                                               -4-
was not actually charged under the “use” prong of § 924(c)(1), and the instruction

was, in all other respects, correct.



      In considering the § 2255 motion, the district court found neither the

evidence nor the indictment supported the jury instruction reference to “use” of a

firearm. Nevertheless, the district court determined the error in instructing the

jury on Mr. Phillips’ “use” of a firearm was harmless because he was indicted and

charged only for “carrying” a firearm.



      After determining the jury instruction on “use” was harmless error, the

district court next determined a new trial unnecessary because the jury based its

verdict on the “carry” portion of the jury instruction, not the “use” portion. The

district court made this determination based on the facts 1) Mr. Phillips was not

charged with “using” a firearm; 2) the jury received the correct instruction on

“carrying” a firearm; and 3) sufficient evidence existed in the record for the jury

to find that under the instruction setting forth the “carry” requirement, Mr.

Phillips had indeed “carried” a firearm.



      We review do novo the district court’s legal conclusion the erroneous jury

instruction was harmless. See United States v. Pierce, 146 F.3d 771, 774 (10th


                                           -5-
Cir. 1998). Mr. Phillips’ only § 2255 grievance before the district court

concerned the lack of evidence showing he “actively employed” the guns in issue.

However, Mr. Phillips was indicted and charged with only “carrying” a firearm. 3

Active employment of a weapon is not required in establishing the “carry”

element of the crime Mr. Phillips committed. See Bailey, 516 U.S. at 150. Thus,

failure of the evidence to establish “active employment” has no effect on Mr.

Phillips’ conviction for carrying a weapon in conjunction with drug trafficking.



      Mr. Phillips’ other issues, raised on appeal, were not presented to, nor

addressed by, the district court in the § 2255 motion; therefore, we will not

address them. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.

1992). While we do not ordinarily consider arguments raised for the first time on

appeal, we do note Mr. Phillips’ issues are without merit. See United States v.

Alamillo, 941 F.2d 1085, 1086 (10th Cir. 1991).




      For these reasons, we find the district court properly denied Mr. Phillips’


      3
        The jury instruction merely references the word “use” and contains none of the
elements required for establishing “use” of a weapon. Thus, no instruction on “active
employment” of a weapon was given or required, and the reference to “use” was harmless
error.


                                         -6-
request for a new trial. We therefore AFFIRM the district court’s denial of Mr.

Phillips’ § 2255 motion.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




                                       -7-
