PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 94-5670

ERVIS LAMONT HASTINGS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 94-5756

MITCHELL IVAN BOLDER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 94-5841

VIVIAN MAE RENFRO,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 95-5078

JAMES MICHAEL PHILLIPS,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-94-29-P)

Argued: October 2, 1997

Decided: January 14, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and
HERLONG, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part and dismissed in part by published opinion. Judge
Wilkins wrote the opinion, in which Judge Murnaghan and Judge
Herlong joined.

_________________________________________________________________

COUNSEL

ARGUED: John Stuart Bruce, Deputy Federal Public Defender,
Greensboro, North Carolina, for Appellant Phillips; Theofanis Xeno-
phon Nixon, GOODMAN, CARR, NIXON, LAUGHRUN &
LEVINE, Charlotte, North Carolina, for Appellant Bolder; Edward
Anthony Fiorella, Jr., HARKEY, LAMBETH, NYSTROM & FIO-
RELLA, Charlotte, North Carolina, for Appellant Hastings; Rodney
Shelton Toth, Charlotte, North Carolina, for Appellant Renfro. Robert
James Conrad, Jr., Assistant United States Attorney, Charlotte, North
Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States
Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

                    2
OPINION

WILKINS, Circuit Judge:

James Michael Phillips appeals his convictions and sentence for
using or carrying a firearm during and in relation to a drug trafficking
offense, see 18 U.S.C.A. § 924(c)(1) (West Supp. 1997); conspiracy
to possess with the intent to distribute cocaine and cocaine base, see
21 U.S.C.A. § 846 (West Supp. 1997); and possession with the intent
to distribute cocaine and cocaine base, see 21 U.S.C.A. § 841(a)(1)
(West 1981).1 We address at length only Phillips' assertion that his
conviction for using or carrying a firearm during and in relation to a
drug trafficking offense must be reversed in light of the subsequent
decision of the Supreme Court in Bailey v. United States, 116 S. Ct.
501 (1995). Because we conclude that Phillips cannot meet the stric-
tures of plain-error review of his claim that the district court errone-
ously instructed the jury regarding the meaning of the term "use"
under § 924(c)(1), and because his remaining challenges lack merit,
we affirm.

I.

From 1992 until his arrest in February 1994, Phillips participated
in a large-scale drug distribution ring in Charlotte, North Carolina.
Phillips received quantities of cocaine base from the leader of the
operation, repackaged the drugs into single-dosage units, and sold
them with the assistance of Jerald Westberry and others.

In late January 1994, undercover government agents arranged to
purchase a quantity of cocaine base from Phillips. On February 2, the
date of the proposed sale, Phillips traveled to a designated location
_________________________________________________________________
1 Phillips' coconspirators--Ervis Lamont Hastings, Mitchell Ivan
Bolder, and Vivian Mae Renfro--appeal the sentences imposed pursuant
to their pleas of guilty to various charges. We conclude that the chal-
lenges raised by Hastings and Bolder are without merit and accordingly
affirm as to them. Because Renfro failed to file a timely notice of appeal
and we cannot conclude that the district court abused its discretion in
determining that Renfro failed to show excusable neglect, see Fed. R.
App. P. 4(b), we dismiss her appeal.

                    3
with Leigh Tucker and Westberry; Tucker drove her automobile, Phil-
lips rode in the front passenger seat, and Westberry sat in the back.
Before departing, Phillips retrieved a pistol from an upstairs closet in
his apartment and loaded the weapon with ammunition stored in the
kitchen. He then placed the firearm in an interior pocket of his coat
and walked to Tucker's vehicle, where he stored the pistol in the con-
sole to his left, within easy reach.

Phillips, Tucker, and Westberry met the "buyers" in a grocery store
parking lot. The parties agreed to consummate the sale at another
location and proceeded toward that destination. Before they arrived,
however, law enforcement officers signaled Tucker to stop. As she
did so, Phillips removed the firearm from the console and handed it
to Westberry, who unsuccessfully attempted to conceal it. All of the
occupants of the vehicle were arrested. Phillips' subsequent convic-
tion for using or carrying a firearm during and in relation to a drug
trafficking offense was based upon this incident.

II.

Phillips argues that his conviction for using or carrying a firearm
during and in relation to a drug trafficking offense, see 18 U.S.C.A.
§ 924(c)(1), must be reversed because the evidence is insufficient to
support it and because the district court erroneously instructed the
jury regarding the meaning of the term "use" under the statute. Phil-
lips bases these contentions on the decision of the Supreme Court in
Bailey v. United States, 116 S. Ct. 501 (1995). In Bailey, the Court
held that in order to obtain a conviction under§ 924(c)(1) for using
a firearm during and in relation to a drug trafficking offense, the Gov-
ernment must establish that the defendant actively employed the
weapon by, e.g., "brandishing, displaying, bartering, striking with,
[or] ... firing or attempting to fire" it. Id. at 508. Although we agree
with Phillips that the evidence, when considered in light of Bailey, is
insufficient to support a conviction for using a firearm and that the
district court gave an erroneous instruction regarding the meaning of
"use," we nevertheless conclude that affirmance of the conviction is
appropriate.

                    4
A.

Phillips first maintains that the evidence is insufficient to support
a finding that he "used" a firearm within the meaning of § 924(c)(1).2
In considering this argument, we must determine whether there is
substantial evidence, viewed in the light most favorable to the Gov-
ernment, to support the verdict. See Glasser v. United States, 315 U.S.
60, 80 (1942).

Here, the evidence establishes that Phillips, in preparation for a
drug transaction, retrieved a firearm from a closet, loaded it, carried
it to Tucker's vehicle, and stored it within easy reach where it
remained throughout the meeting with the purported purchasers. The
Government concedes that this evidence is insufficient to support a
conviction for using a firearm in the post-Bailey sense of that term.
And, although we are not bound by the Government's concession, see
Sibron v. New York, 392 U.S. 40, 58 (1968), we agree that the evi-
dence presented does not allow a rational jury to conclude that Phil-
lips actively employed the weapon during and in relation to a drug
trafficking offense. Nevertheless, we reject Phillips' sufficiency chal-
lenge because the evidence, although inadequate to support a convic-
tion for using a firearm, is more than sufficient to warrant a
conviction on the basis that Phillips carried a firearm. See United
States v. Mitchell, 104 F.3d 649, 652-54 (4th Cir. 1997) (holding evi-
dence that defendant "knowingly possessed and transported [a] fire-
arm in his automobile" adequate to support a finding that defendant
"carried" the firearm for purposes of § 924(c)(1)); see also Griffin v.
United States, 502 U.S. 46, 56-60 (1991) (explaining that when a case
is submitted to a jury on two theories and the jury returns a general
verdict of guilty, affirmance is appropriate so long as the evidence is
sufficient to support a conviction on either theory).

B.

Phillips next argues that his conviction is invalid because the dis-
trict court improperly instructed the jury regarding the meaning of the
_________________________________________________________________
2 Phillips does not challenge the adequacy of the evidence supporting
a finding that the firearm was used or carried "during and in relation to
... [a] drug trafficking crime." 18 U.S.C.A. § 924(c)(1).

                    5
term "use" as that term is employed in § 924(c)(1). At the close of
trial, the district court instructed the jury that it must convict Phillips
of the § 924(c)(1) charge if it found that he had "used or carried the
firearm." J.A. 549. The district court then elaborated on the meaning
of the term "use":

          A firearm can be used in relation to a felony involving drug
          trafficking if the person possessing it intended to use the gun
          as a contingency arose, for example, to protect himself or
          make escape possible. It is not necessary that the firearm
          actually be used, displayed or in the defendant's actual pos-
          session. It is sufficient if the possessor of the firearm
          intended to have it available for use during the commission
          of a drug crime.

           You may also find that the defendant used a firearm in
          violation of 924(c)(1) if you find that the firearm was an
          integral part in a criminal undertaking and its availability
          increased the likelihood that the criminal undertaking would
          succeed, even though the defendant did not brandish, dis-
          play or discharge the firearm.

Id. at 549-50. The district court did not instruct the jury regarding the
meaning of the term "carry." Phillips maintains that the instruction
given by the district court regarding the definition of "use" was erro-
neous in light of Bailey and that the error mandates reversal of his
conviction.

Because Phillips failed to object to the instruction given by the dis-
trict court, our review is for plain error. See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993). In order to
establish our authority to notice an error not preserved by a timely
objection, Phillips must show that an error occurred, that the error
was plain, and that the error affected his substantial rights. See Olano,
507 U.S. at 732; United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.
1996). Even if Phillips can satisfy these requirements, correction of
the error remains within our sound discretion, which we "should not
exercise ... unless the error `seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.'" Olano, 507 U.S. at 732
(second alteration in original) (quoting United States v. Young, 470

                      6
U.S. 1, 15 (1985)); see United States v. David , 83 F.3d 638, 641 (4th
Cir. 1996).

1.

In reviewing for plain error, our initial inquiry is whether an error
occurred. The Bailey Court held that in order to obtain a conviction
under § 924(c)(1) for "using" a firearm during and in relation to a
drug trafficking crime, the Government must establish that the defen-
dant actively employed the weapon. See Bailey , 116 S. Ct. at 505-06.
In reaching this holding, the Court explicitly rejected the notion that
the "use" requirement is satisfied by a showing of mere "possession
with a floating intent to use" a weapon. Id. at 506 (internal quotation
marks omitted). Here, the district court instructed the jury that it could
find that Phillips "used" a firearm in violation of the statute even in
the absence of any evidence that he "actually ... used" it. J.A. 550. In
light of Bailey, this instruction was erroneous.

2.

Next, the error must be plain. At the time of Phillips' trial, the
instruction given by the district court was consistent with the law of
this circuit. See, e.g., United States v. Paz, 927 F.2d 176, 179 (4th Cir.
1991) (explaining that a "weapon need not be brandished or dis-
played" in order to satisfy the "use" requirement; "[r]ather, it is
enough if the firearm is present for protection and to facilitate the
likelihood of success" (internal quotation marks omitted)). During the
pendency of this appeal, however, the Supreme Court issued its deci-
sion in Bailey, clearly articulating a standard for establishing "use"
contrary to that previously employed by this circuit. As the Court
recently has explained, an error is plain at least when "the law at the
time of trial was settled and clearly contrary to the law at the time of
appeal." Johnson v. United States, 117 S. Ct. 1544, 1549 (1997); see
David, 83 F.3d at 645 (holding that an error is plain when "an objec-
tion at trial would have been indefensible because of existing law, but
a supervening decision prior to appeal reverses that well-settled law").
The error, therefore, was plain.

3.

Third, Phillips must establish that the error affected his substantial
rights, i.e., that it was prejudicial. See Olano, 507 U.S. at 734. As the

                     7
Supreme Court noted in Olano, this prejudice inquiry differs from the
review for harmlessness required when an error is preserved by timely
objection in the district court in that, on plain-error review, "[i]t is the
defendant rather than the Government who bears the burden of per-
suasion." Id. This difference, moreover, is not an insignificant one.
On harmless-error review, a defendant is entitled to reversal of his
conviction unless the Government can establish that"the error `does
not affect substantial rights.'" Id. at 735 (quoting Fed. R. Crim. P.
52(a)). In contrast, on plain-error review, a defendant is entitled to
reversal only upon a showing that "the error does `affec[t] substantial
rights,'" that is, that the error actually affected the outcome of the pro-
ceedings. Id. (alteration in original) (quoting Fed. R. Crim. P. 52(b));
see United States v. Turcks, 41 F.3d. 893, 898 (3d Cir. 1994) (explain-
ing that defendant's burden on plain-error review"is to show that the
outcome of [the] trial was actually affected" by the error); United
States v. Miro, 29 F.3d 194, 200 (5th Cir. 1994) (noting that in order
to establish that an error affected substantial rights, the defendant
ordinarily must "make a specific showing of actual prejudice"); see
also United States v. McKinney, 954 F.2d 471, 475-76 (7th Cir. 1992)
(describing plain error as "an error so grievous that it caused an actual
miscarriage of justice, which implies that the defendant probably
would not have been convicted absent the error"). But see United
States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994) (concluding that the
proper standard for prejudice on plain-error review requires a show-
ing that the error "might likely have substantially affected the out-
come of the trial" (internal quotation marks omitted)). Simply stated,
"harmless error and plain error are not the same, and the fact that an
error is not harmless does not necessarily mean it" affected the defen-
dant's substantial rights. McKinney, 954 F.2d at 475.

Before assessing whether Phillips can carry his burden of establish-
ing that his substantial rights were affected by the erroneous instruc-
tion, we first pause to clarify that such an inquiry, in fact, is
appropriate here. As the Olano Court noted,"[t]here may be a special
category of forfeited errors that can be corrected regardless of their
effect on the outcome" of the proceedings. Olano, 507 U.S. at 735.
Under the law of this circuit, an error that cannot be reviewed for
harmlessness, including a "failure to instruct on an element of the
crime, where the jury never made the constitutionally required find-
ings," automatically satisfies the third prong of the plain-error analy-

                     8
sis without a specific showing of prejudice by the defendant. David,
83 F.3d at 647; cf. United States v. Aramony, 88 F.3d 1369, 1387 (4th
Cir. 1996) (concluding that a failure to instruct the jury on an element
of the offense is harmless when "the jury actually made an equivalent
or identical finding pursuant to another instruction"), cert. denied, 117
S. Ct. 1842 (1997). Here, however, the error is not one of noninstruc-
tion, but of misinstruction: The district court did not deprive the jury
of the opportunity to make a finding of fact regarding an essential ele-
ment of the offense; instead, it allowed the jury to make the requisite
finding under an incorrect standard. See Johnson , 117 S. Ct. at 1549-
50 (recognizing this distinction between misinstruction and nonin-
struction on an element of an offense). And, as the Supreme Court
recently stated in Johnson, "improperly instructing the jury on an ele-
ment of the offense[ is] an error which is subject to harmless-error
analysis." Id. at 1550 (citations omitted). In view of this clear state-
ment, there can be no doubt that a misinstruction does not fall into the
narrow category of errors that automatically satisfy the third prong of
the plain-error analysis, irrespective of the defendant's ability to
establish prejudice. Accordingly, we must determine whether Phillips
can show that the erroneous instruction by the district court affected
his substantial rights.

In considering whether Phillips can satisfy the third prong of the
plain-error analysis, it is helpful first to review the standard for deter-
mining when an error of misinstruction that has been preserved for
review by means of a timely objection may be considered harmless.
A proper understanding of the burden borne by the Government on
harmless-error review serves to clarify the nature of Phillips' burden
on plain-error review.

When a defendant timely objects to the giving of an erroneous
instruction, the conviction may be affirmed only if the court is satis-
fied, beyond a reasonable doubt, that the error was harmless. See
Chapman v. California, 386 U.S. 18, 24 (1967). 3 In applying this
standard, a reviewing court should "consider ... not what effect the
_________________________________________________________________
3 We assume, for purposes of this appeal, that the giving of an errone-
ous instruction on an element of an offense is a constitutional error. See
United States v. Doherty, 867 F.2d 47, 58 (1st Cir. 1989); see also Pope
v. Illinois, 481 U.S. 497, 502-04 (1987).

                     9
constitutional error might generally be expected to have upon a rea-
sonable jury, but rather what effect it had upon the guilty verdict in
the case at hand" by looking "to the basis on which `the jury actually
rested its verdict.'" Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)
(quoting Yates v. Evatt, 500 U.S. 391, 404 (1991)).

When, over a proper objection, a district court erroneously instructs
the jury on an element of the offense, the error may be disregarded
as harmless if a reviewing court can determine, beyond a reasonable
doubt, that a correctly instructed jury would have reached the same
conclusion. See Pope v. Illinois, 481 U.S. 497, 502-03 (1987); United
States v. Hairston, 46 F.3d 361, 373 (4th Cir. 1995). A court should
make this determination by first ascertaining what evidence the jury
necessarily credited in order to convict under the erroneous instruc-
tion and then considering whether that evidence--or facts so inextri-
cably intertwined with the credited evidence that acceptance of the
evidence is the functional equivalent of finding those facts--
establishes an offense under a proper instruction. See Pope, 481 U.S.
at 503; United States v. Edmonds, 80 F.3d 810, 825 (3d Cir.) (en
banc) (affirming conviction despite misinstruction on an element of
the offense when facts establishing that element were so inextricably
intertwined with the evidence necessarily accepted by the jury in
order to convict that acceptance of that evidence was the functional
equivalent of finding those facts),4 cert. denied, 117 S. Ct. 295
_________________________________________________________________
4 In Edmonds, the defendant argued that the district court had errone-
ously instructed the jury that it need not agree unanimously on which of
eight offenses comprised the three related predicate offenses necessary
to convict the defendant of operating a continuing criminal enterprise.
See Edmonds, 80 F.3d at 812. The Third Circuit concluded that the error
was harmless beyond a reasonable doubt because "the evidence that the
jury must have credited to find Edmonds guilty of the predicate viola-
tions unequivocally established that all charged violations were related."
Id. at 812-13. In reaching this holding, the court explained that a convic-
tion obtained pursuant to an erroneous instruction"may be salvageable.
Specifically, if other facts found by the jury are`so closely related' to the
fact tainted by erroneous instructions `that no rational jury could find
those facts without also finding [the former] fact, making those findings
is functionally equivalent to finding' the lacking element." Id. at 824
(second alteration in original) (quoting Carella v. California, 491 U.S.

                    10
(1996); United States v. Maloney, 71 F.3d 645, 658 (7th Cir. 1995),
cert. denied, 117 S. Ct. 295 (1996); United States v. Doherty, 867
F.2d 47, 58-59 (1st Cir. 1989); see also Carella v. California, 491
U.S. 263, 271 (1989) (Scalia, J., concurring in judgment) (explaining
that an erroneous presumption may be harmless if"the predicate facts
relied upon in the instruction, or other facts necessarily found by the
jury, are so closely related to the ultimate fact to be presumed that no
rational jury could find those facts without also finding that ultimate
fact" because under such circumstances "making those findings is
functionally equivalent to finding the element required to be pre-
sumed"); Sullivan, 508 U.S. at 281 (quoting, with approval, Justice
Scalia's concurring opinion in Carella); cf. Yates v. Evatt, 500 U.S.
391, 404-05 (1991) (holding that application of harmless-error analy-
sis to erroneous presumption depends upon a determination of what
evidence the jury actually considered in reaching its verdict and a
consideration of whether, in light of that evidence, it is possible to say
beyond a reasonable doubt that the jury's verdict was not affected by
the presumption); United States v. Holmes, 93 F.3d 289, 293-94 (7th
Cir. 1996) (in ascertaining whether erroneous pre-Bailey instruction
defining the phrase "uses or carries a firearm" affected the defen-
dant's substantial rights, court looked to the evidence presented and
concluded that the error affected substantial rights because the jury
did not necessarily credit evidence establishing that the defendant car-
ried firearms or used them in the post-Bailey sense).5
_________________________________________________________________
263, 271 (1989) (Scalia, J., concurring in judgment)). That standard was
satisfied, the court determined, because the evidence necessarily
accepted by the jury in order to convict the defendant of the predicate
offenses was so inextricably intertwined with evidence establishing the
relatedness of the predicate offenses that acceptance by the jury of the
evidence necessary to convict was the functional equivalent of finding
that each of the predicate offenses was related to the others. See id. at
825-27.
5 We note a seeming inconsistency in our prior decisions in United
States v. Hawthorne, 94 F.3d 118, 121 (4th Cir. 1996), and United States
v. Smith, 94 F.3d 122, 124 (4th Cir. 1996), the language of which appears
to suggest that the standard for harmless-error review of an erroneous
instruction is other than that set forth in Pope . To the extent this is so,
these decisions are undermined by Johnson, which clearly and unequivo-
cally instructs that erroneous instructions may be reviewed for harmless-
ness under the standard set forth in Pope. See Johnson, 117 S. Ct. at
1550; Wilson, No. 95-5581, slip op. at 24.

                  11
Application of the harmless-error analysis for erroneous instruc-
tions is also possible when the trial court submits a case to the jury
on two or more alternate theories, one of which is the subject of an
erroneous instruction. Under such circumstances, the determination of
whether the error was harmless is guided by Yates v. United States,
354 U.S. 298, 311-12 (1957). See United States v. Hudgins, 120 F.3d
483, 486-87 (4th Cir. 1997). Under Yates, reversal is required when
a case is submitted to a jury on two or more alternate theories, one
of which is legally (as opposed to factually) inadequate, the jury
returns a general verdict, and it is impossible to discern the basis on
which the jury actually rested its verdict. See Yates, 354 U.S. at 311-
12; see also Griffin v. United States, 502 U.S. 46, 52 (1991). This rule
is appropriate because when it cannot be determined that the convic-
tion did not rest entirely on a legally inadequate ground, it is impossi-
ble to say that the error in submitting the legally inadequate ground
to the jury was harmless beyond a reasonable doubt.

The analysis required to decide whether it is possible to discern the
basis on which a jury rested its verdict under Yates is essentially an
adaptation of the inquiry conducted under Pope to determine whether
an instructional error is harmless. A reviewing court must attempt to
ascertain what evidence the jury necessarily credited in order to con-
vict the defendant under the instructions given. If that evidence is
such that the jury must have convicted the defendant on the legally
adequate ground in addition to or instead of the legally inadequate
ground, the conviction may be affirmed. See Hudgins, 120 F.3d at
487-88 (affirming § 924(c)(1) conviction because the evidence neces-
sarily credited by the jury in order to convict under the erroneous
"use" instruction established that the defendant had "carried" a fire-
arm); United States v. Washington, 106 F.3d 983, 1013 (D.C. Cir.)
(same), cert. denied, 118 S. Ct. 446 (1997); United States v. Feinberg,
89 F.3d 333, 340 (7th Cir. 1996) (same), cert. denied, 117 S. Ct. 997
(1997); United States v. Boots, 80 F.3d 580, 589 (1st Cir.) (reversing
conviction under Yates because the evidence supporting conviction on
a valid ground was "not so intricately intertwined with the invalid ...
count that we can necessarily say that the ... conviction had a legally
correct basis"), cert. denied, 117 S. Ct. 263 (1996).6
_________________________________________________________________
6 Although we are not presented with this question, it appears to us that
a conviction also may be affirmed under this rationale if the evidence

                    12
If Phillips had lodged a timely objection to the instruction given by
the district court regarding "use" of a firearm, the Yates analysis
would be applicable here.7 The district court instructed the jury that
it could convict Phillips of the § 924(c)(1) charge if it found that he
had either used or carried a firearm during and in relation to a drug
trafficking offense. In conjunction with that charge, the district court
provided an erroneous definition of the term "use." But, no such erro-
neous instruction was given regarding the meaning of the term
"carry." The district court thus provided the jury with alternative
bases for a conviction, one of which--we now know in light of Bailey
--rested on an erroneous instruction. Furthermore, the general verdict
of guilt returned by the jury did not specify whether it found Phillips
to have "used" the firearm or to have "carried" it.

Because Phillips failed to object in a timely fashion to the instruc-
tion, however, we cannot simply review to determine whether the
instructional error was harmless beyond a reasonable doubt.8 Thus,
_________________________________________________________________
necessarily credited by the jury in order to convict pursuant to the errone-
ous instruction establishes a conviction under a proper instruction on that
element, even if the evidence does not establish a violation under the
alternate, properly instructed theory.
7 We assume, for purposes of this appeal, that an erroneous instruction
on an element of one of the bases for conviction renders that basis "le-
gally inadequate." See Hudgins, 120 F.3d at 487 & n.2.
8 While recognizing that plain-error analysis is appropriate for review
of unpreserved Bailey instructional errors, some language in Hudgins
suggests that the Yates analysis is interchangeable with the "more tor-
tured" plain-error analysis. Hudgins, 120 F.3d at 488 n.3. As the
Supreme Court made clear in Olano, however, the two modes of analysis
differ significantly. On review for plain error, the defendant bears the
burden of establishing that he has been prejudiced by an unpreserved
error; in contrast, harmless-error review requires the Government to
demonstrate that a preserved error was harmless. See Olano, 507 U.S. at
734. Although Hudgins is not entirely clear on this point, we must pre-
sume from its application of Yates that it was at least arguable that the
defendant properly had preserved an objection to the jury instructions on
use, rendering it more appropriate to apply the higher standard of
harmless-error review. In view of these circumstances, any suggestion in
Hudgins that plain-error review and harmless-error review are inter-
changeable is mere dicta.

                    13
having set forth the burden the Government must satisfy in order to
prove harmlessness when the district court has submitted a
§ 924(c)(1) charge to a jury on the alternative bases of an erroneous
pre-Bailey "use" instruction and a correct "carry" instruction--that the
evidence the jury necessarily credited in order to reach a conviction
under the invalid "use" prong established a conviction under the
"carry" prong--we turn to the manner in which that standard is to be
applied on plain-error review, when the defendant rather than the
Government bears the burden of proof. In our view, Phillips' burden
of showing that his substantial rights were affected by the error
requires him to show that the jury actually convicted him based upon
an erroneous understanding of the term "use." See United States v.
Turcks, 41 F.3d 893, 898-99 (3d Cir. 1994) (holding that a defendant
seeking to establish that substantial rights were affected by the sub-
mission to the jury of an erroneously instructed basis for conviction
when the jury was also provided with a properly instructed basis must
show that the jury convicted pursuant to the erroneous instruction).
Importantly, it is not enough for Phillips to establish that it is impossi-
ble to tell whether the verdict returned by the jury rested solely on the
misinstruction, for such a showing would establish only that the error
was not harmless. See United States v. McKinney , 954 F.2d 471, 475
(7th Cir. 1992) (explaining that the mere fact that an error is not
harmless does not mean that it affects substantial rights). Rather, in
order to establish the actual prejudice required by the third prong of
plain-error review, Phillips must demonstrate that the erroneous "use"
instruction given by the district court resulted in his conviction.

Phillips cannot satisfy this burden. In order to convict under the
instructions issued by the district court, the jury must have credited
the testimony of Jerald Westberry and Leigh Tucker concerning the
events of February 2, 1994. This testimony--the only evidence pres-
ented concerning whether Phillips used or carried a firearm--
established that, prior to a drug transaction, Phillips retrieved a pistol
from a closet, loaded it, placed it in an interior pocket of his coat, and
transported it to Tucker's automobile, where he stored it within easy
reach. Thus, in making the factual finding necessary to convict under
the erroneous instruction, the jury necessarily found facts establishing
that Phillips "carried" the weapon. Under these circumstances, Phil-
lips cannot demonstrate that the jury rested its verdict solely on the

                     14
legally inadequate "use" prong. See Hudgins, 120 F.3d 487-88.9
Accordingly, the third prong of the plain-error analysis is not satis-
fied.

4.

Even if Phillips were able to show prejudice arising from the erro-
neous use instruction, it would remain within our discretion to correct
the error. See Olano, 507 U.S. at 735-36; United States v. David, 83
F.3d 638, 647 (4th Cir. 1996). Our discretion is appropriately exer-
cised only when failure to do so would result in a miscarriage of jus-
tice, such as when the defendant is actually innocent or the error
"seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings." David, 83 F.3d at 647 (internal quotation marks
omitted) (alteration in original). "Central to this inquiry is a determi-
nation of whether, based on the record in its entirety, the proceedings
against the accused resulted in a fair and reliable determination of
guilt." United States v. Cedelle, 89 F.3d 181, 186 (4th Cir. 1996).10

The circumstances present here do not warrant the exercise of our
discretion to notice plain error. As noted above, the evidence adduced
at trial points inexorably to the conclusion that Phillips carried a fire-
arm during and in relation to a drug trafficking crime. See id. (declin-
ing to notice plain error when the evidence "permit[ted] no other
conclusion but that" the defendant was guilty). Therefore, even if
Phillips could establish that the erroneous instruction by the district
court affected his substantial rights, we would decline to reverse his
conviction.
_________________________________________________________________

9 Indeed, under these facts it is possible to conclude that the error of the
district court in submitting the improperly instructed "use" prong to the
jury was harmless beyond a reasonable doubt.

10 This case does not present circumstances in which an error may war-
rant the exercise of our discretion to notice plain error "even though the
record demonstrates that the defendant is guilty." Cedelle, 89 F.3d at 186
n.4.

                     15
III.

We affirm Phillips' conviction for using or carrying a firearm dur-
ing and in relation to a drug trafficking offense in violation of 18
U.S.C.A. § 924(c)(1) because Phillips cannot establish that the erro-
neous instruction by the district court affected his substantial rights.
Concluding that Phillips' other challenges are without merit, we
affirm his remaining convictions and his sentence as well. Finally, we
affirm the sentences of Hastings and Bolder, and we dismiss Renfro's
appeal as untimely filed.

AFFIRMED IN PART; DISMISSED IN PART

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