                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 2 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 98-5012
                                                    (D.C. No. 96-CV-509-E)
    BRENT L. SMALLWOOD,                                   (N.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BRORBY, McKAY, 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      This order and judgment is not binding precedent, except under the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.
       Defendant Brent L. Smallwood was convicted of possession of a controlled

substance with intent to distribute, in violation of 21 U.S.C. § 844(a), and using

or carrying a firearm while in the commission of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c). He did not appeal. He filed this motion to

vacate, set aside, or correct sentence under 28 U.S.C. § 2255, arguing that his

conviction and sentence on the gun charge should be vacated in light of      Bailey v.

United States , 516 U.S. 137 (1995). He contends that it was improper for the jury

to have been instructed on both “using” and “carrying” a firearm because he was

charged only with “carrying” a firearm.      See 18 U.S.C. § 924(c). He also argues

that the evidence was insufficient to show he “carried” a firearm within the

meaning of § 924(c). The district court denied relief, and defendant appeals.

Defendant is representing himself and proceeding in forma pauperis. He must

obtain a certificate of appealability (COA) to proceed on appeal.     See 28 U.S.C.

§ 2253(c)(1)(B). We conclude that the district court correctly denied the § 2255

motion. We therefore deny defendant a COA and dismiss the appeal.

       “[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.”   United States v. Pearce , 146 F.3d 771,

774 (10th Cir. 1998). In     Bailey , the Supreme Court distinguished the “use” prong

of § 924(c) from the “carry” prong, defining “use” as requiring that the defendant

“actively employed the firearm during and in relation to the predicate crime.”


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Bailey , 516 U.S. at 150. Active employment “includes brandishing, displaying,

bartering, striking with, and most obviously, firing or attempting to fire, a

firearm.” Id. at 148. “[A] reference to a firearm calculated to bring about a

change in the circumstances of the predicate offense is a ‘use,’ just as the silent

but obvious and forceful presence of a gun on a table can be a ‘use.’”      Id. The

Supreme Court did not define the “carry” prong in       Bailey , but has recently

decided that “‘carry’ implies personal agency and some degree of possession.”

Muscarello v. United States , 118 S. Ct. 1911, 1917 (1998). “Carrying” is not

limited to carrying a firearm on the person, but includes carrying a firearm in a

vehicle–even in the glove compartment or trunk.        See id. at 1913-14. This

decision reaffirms our existing holding that “carrying” requires that the defendant

both possessed and transported a firearm during and in relation to a drug

trafficking crime.    See United States v. Spring , 80 F.3d 1450, 1465 (10th Cir.

1996).

         In this case, the jury was instructed that:

                [t]he phrase “uses or carries a firearm[“] means having a
         firearm or firearms, available to assist or aid in the commission of
         the crime charged in count one of the indictment.

                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.

                                             -3-
              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.

R. doc. 38, at 3 (district court order).

       We may affirm a conviction for “carrying” a firearm, despite jury

instructions which were incorrect under     Bailey , if we are “absolutely certain that

the jury convicted solely under the ‘carry’ prong.”    United States v. Barnhardt , 93

F.3d 706, 709 (10th Cir. 1996). Defendant does not dispute that the evidence

showed that he arrived at a vacant apartment under surveillance by police,

knocked on the door, was searched, and was found to have a firearm and a

package of cocaine on his person.     See Appellant’s Application for Certificate of

Appealability at 4. Thus, he cannot dispute that there was sufficient evidence to

show that he “carried” a firearm and no evidence to show that he “used” a firearm

within the meaning of § 924(c).     See Muscarello , 118 S. Ct. at 1913-14, 1917;

Bailey , 516 U.S. at 150. The government conceded in the district court that the

“use” instruction given in this case was erroneous under     Bailey because it stated

that the government need not prove that defendant displayed or brandished the

firearm. In effect, the instruction defined only “carrying,” and the word “use”

was completely extraneous. Defendant does not argue that the “carry” instruction

was incorrect. Therefore, we are convinced that the jury convicted defendant


                                            -4-
under the “carry” prong of § 924(c), and hold that the district court appropriately

determined that the incorrect “use” instruction was a harmless error.    See 28

U.S.C. § 2111 (stating that court should ignore errors that do not affect

“substantial rights” of the parties).

       DISMISSED.



                                                        Entered for the Court



                                                        Monroe G. McKay
                                                        Circuit Judge




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