UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-7213

CALVIN ANGELO COWARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CR-90-52-H, CA-96-63-4-H)

Submitted: November 26, 1996

Decided: January 26, 1998

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion. Judge Motz concurs
only in the judgement.

_________________________________________________________________

COUNSEL

Calvin Angelo Coward, Appellant Pro Se. Barbara Dickerson Kocher,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Calvin Coward seeks to appeal the district court's order denying
his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1997). He attacks his conviction for aiding and abetting the use or
carrying of a firearm during and in relation to a drug trafficking
offense, see 18 U.S.C.A. § 924(c)(1) (West Supp. 1997), alleging pri-
marily that "there was insufficient evidence to show active employ-
ment of the firearm." (Petitioner's Memorandum in Support of § 2255
Motion at 5.) The district court denied Coward's motion, stating that
it had

          carefully considered this matter, particularly as relates to
          this court's interpretation of Bailey v. United States, 116
          S. Ct. 501, 133 L.Ed.2d 472 (1995). This court concludes
          that Bailey did not change the interpretation of the "carry-
          ing" prong of 18 U.S.C. § 924(c). Additionally, Bailey did
          not change the interpretation of "aiding and abetting" the
          carrying of a firearm.

See United States v. Coward, Nos. 4:90-CR-52-2-H; 4:96-CV-63-H
(E.D.N.C. July 9, 1996).

Although Bailey did not expressly change the interpretation of the
"carrying" prong of 18 U.S.C.A. § 924(c)(1), we have recently clari-
fied what it means to carry a firearm in connection with a drug traf-
ficking offense. See United States v. Mitchell , 104 F.3d 649, 653 (4th
Cir. 1997) (holding that "the plain meaning of the term `carry' as used
in § 924(c)(1) requires knowing possession and bearing, movement,
conveyance, or transportation of the firearm in some manner"). Under
this statutory definition of "carry," it is clear that Coward's cousin
(the principal) carried a firearm during and in relation to a drug traf-
ficking offense. He admitted that he was in possession of the revolver
and the evidence established that he transported or conveyed the
weapon in connection with the drug offense. Cf. id. at 654. In addi-
tion, Bailey did not change the interpretation of "aiding and abetting"
the carrying of a firearm. See United States v. Price, 76 F.3d 526, 529
(3d Cir. 1996) (holding post-Bailey that defendant aided and abetted

                    2
the carrying of a firearm in violation of § 924(c)); see also United
States v. Martin, 25 F.2d 211, 213 (4th Cir. 1994) (defendant con-
victed of aiding and abetting violation of § 924(c)); United States v.
Adkins, 937 F.2d 947, 950 (4th Cir. 1991) (discussing § 924(c)(1) lia-
bility under aiding and abetting theory). Accordingly, we conclude
that the evidence is sufficient to support Coward's conviction.

Although Coward raised only a sufficiency claim in his § 2255
Motion (Motion at 5), he raised the issue of instructional error in his
supporting papers (Petitioner's Memorandum in Support of § 2255
Motion at 18-21). According to Coward, he was "tried on [an] errone-
ous jury instruction that allowed a jury to broadly construe 924(c) to
encompass acts that were not criminal." (Petitioner's Memorandum in
Support of § 2255 at 19.) Because Coward did not object to the jury
instructions at trial, we review his conviction for plain error under
Federal Rule of Criminal Procedure 52(b). See United States v.
Hastings, No. 94-5670 (4th Cir. Jan 14, 1998); see also United States
v. Olano, 507 U.S. 725, 731-32 (1993); United States v. Cedelle, 89
F.3d 181, 184 (4th Cir. 1996).

Our review of the district court proceedings reveals that -- in light
of the Supreme Court's decision in Bailey and our decision in
Mitchell -- the district court's jury instruction on the § 924(c)(1)
charge was error, see Olano, 507 U.S. at 732-33, that is "`clear' or . . .
`obvious,'" id. at 734. We are not convinced, however, that the dis-
trict court's erroneous jury instruction affected Coward's "substantial
rights." See id. The language "affecting substantial rights" "means that
the error must have been prejudicial: It must have affected the out-
come of the district court proceedings." Id. An error not affecting the
outcome of the trial, i.e., a harmless error, does not affect a defen-
dant's substantial rights and does not satisfy the requirements of
plain-error analysis under Olano.

It is firmly established that "improperly instructing the jury on an
element of the offense . . . [is] an error which is subject to harmless-
error analysis." Johnson v. United States, 117 S. Ct. 1544, 1550
(1997) (citing Yates v. Evatt, 500 U.S. 391 (1991); Carella v.
California, 491 U.S. 263 (1989); Pope v. Illinois, 481 U.S. 497
(1987); Rose v. Clark, 478 U.S. 570 (1986)). Applying harmless-error
analysis to the misinstruction in this case, we conclude that Coward

                     3
was not prejudiced by the district court's erroneous jury instruction.
Cf. Hastings, slip op. at 9 (setting forth "the standard for determining
when an error of misinstruction [is] . . . harmless"). Coward and his
cousin were in the back bedroom of a house when police officers exe-
cuted a search warrant. As the officers approached the bedroom, they
heard an object hit the floor. Upon entering the room, the officers dis-
covered a revolver lying on the floor between Coward and his cousin.
A large quantity of drugs and drug paraphernalia were also found in
the room. Coward's cousin admitted that he was in possession of the
revolver, and, as we have said, evidence presented at trial established
that Coward's cousin "carried" the firearm in the post-Bailey and
post-Mitchell sense of those terms. The jury convicted Coward of
possessing cocaine with the intent to distribute and of aiding and abet-
ting the use or carrying of a firearm during and in relation to a drug
trafficking offense.

Even if we assumed that Coward's substantial rights were affected
by the district court's erroneous instruction, we would nevertheless
decline to notice the error. An appellate court may exercise its discre-
tion to notice (and correct) forfeited error after concluding that the
error "seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings." Olano, 507 U.S. at 736 (alteration in original).
In this case that question must be answered in the negative. The evi-
dence that Coward aided and abetted the carrying of a firearm during
and in relation to a drug trafficking offense is overwhelming. And, as
the Supreme Court has held, where the evidence supporting a convic-
tion is overwhelming, "there is no basis for concluding that the error
`seriously affect[ed] the fairness, integrity or public reputation of judi-
cial proceedings.'" Johnson, 117 S. Ct. at 1550 (alteration in original).
"Indeed, it would be the reversal of a conviction such as this which
would have that effect." Id. Accordingly, we decline to notice the
error.

We therefore deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

DISMISSED

                     4
