                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 13 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 97-3373
                                                 (D.C. No. 97-CV-3216-EEO)
    MARLON D. WATSON,                                     (D. Kan.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before KELLY, BARRETT, and HENRY, 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      This order and judgment is not binding precedent, except under the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 Marlon D. Watson appeals the district court’s denial of his

motion to vacate, set aside, or correct his convictions, brought pursuant to 28

U.S.C. § 2255. We grant a certificate of appealability only as to defendant’s

argument regarding the effect of Bailey v. United States, 516 U.S. 137 (1995),

and affirm the judgment of the district court. 1

      On June 9, 1994, defendant was stopped for speeding. During the traffic

stop the officer noticed a Mac 12 semiautomatic firearm protruding from under

the driver’s seat. Defendant was arrested for violating a city ordinance

prohibiting the carrying of a weapon in the passenger portion of a vehicle. A

search of defendant revealed a pager on his belt and 13 individually wrapped

packets of crack cocaine, totaling 4.29 grams, in his pockets. At trial, defendant

denied the cocaine was his, testifying he had inadvertently picked up the wrong

jacket at a party that evening. Defendant was convicted of one count of

possession of crack cocaine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1), and one count of using or carrying a firearm in connection with a

drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). His convictions




1
      As defendant filed this § 2255 motion well after enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, he is subject to the
requirement that he obtain a certificate of appealability by making “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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were affirmed on appeal in United States v. Watson, No. 94-3413, 1995 WL

628114 (10th Cir. Oct. 26, 1995).

      On May 15, 1997, defendant filed his § 2255 motion, alleging the

convictions were invalid because (1) the evidence was insufficient to support a

conviction for using or carrying a firearm under 18 U.S.C. § 924(c)(1) in light of

Bailey, 516 U.S. 137; (2) the evidence of intent to distribute was insufficient to

support a conviction; (3) the court erred in refusing to give an instruction

regarding the lesser included offense of simple possession; and (4) his attorney

was ineffective. In a detailed Memorandum and Order, the district court denied

defendant’s claims, finding the jury’s verdict cured the Bailey error, the second

and third issues were procedurally barred, and defendant failed to demonstrate

prejudice from his attorney’s alleged ineffectiveness. As defendant has not made

a substantial showing of the denial of a constitutional right regarding his second,

third, and fourth issues, we discuss only the Bailey claim and dismiss the

remaining claims.

      During defendant’s trial, the jury was instructed regarding the elements of

18 U.S.C. § 924(c)(1), in pertinent parts, as follows:

            With regard to Count II, the essential elements required to be
      proved in order to establish the guilt of the defendant are as follows:

            FIRST: That the defendant committed a crime of possession
      with intent to distribute . . . .


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             SECOND: That during and in relation to the commission of the
      drug trafficking crime, the defendant used or carried a firearm as
      described . . . .

                                        ....

             A firearm is used or carried during and in relation to a drug
      trafficking crime when a defendant had ready access to it, and the
      firearm was an integral part of the criminal undertaking, and its
      availability increased the likelihood that the criminal undertaking
      would succeed.

R. I, doc. 33, Instructions 9 & 10. After defendant’s conviction and appeal, the

Supreme Court held that the “use” prong of this crime could not be satisfied by

passive possession, requiring instead a finding that the firearm was actively

employed in relation to a drug trafficking offense. See Bailey, 516 U.S. at

143-44. Therefore, the jury was incorrectly instructed in defendant’s case.

      This error does not require reversal, however. In United States v. Holland,

116 F.3d 1353 (10th Cir.), cert. denied, 118 S. Ct. 253 (1997), we held

      an erroneous “use” instruction does not require reversal of the
      conviction when the jury was also instructed without objection on
      “carry,” the defendant did not dispute that the firearm was carried on
      his person or in his vehicle, and the jury verdict necessarily includes
      an inherent finding of “carrying during and in relation to the drug
      crime.” The essential inquiry is whether the jury’s verdict, under the
      instructions given and the nature of the evidence, required the jury to
      find all the elements of a “carrying” violation, or stated another way,
      whether the verdict was the functional equivalent of such a finding.
      We must be convinced that it was impossible upon the evidence and
      instructions for the jury to have returned a “use” conviction without
      finding all the elements of a “carrying” violation as well.



                                         -4-
Id. at 1359 n.4. Here, there was no objection to the “carry” instruction, and

defendant did not dispute that the firearm was carried in his vehicle. Further, the

jury’s verdict necessarily included the elements of a “carrying” violation, that is,

the jury necessarily found that defendant possessed and transported the weapon

during and in relation to a drug trafficking offense.

      To return a guilty verdict under the instructions, the jury had to have found

that defendant had ready access to the weapon, thus satisfying the “possession”

element, see United States v. Miller, 84 F.3d 1244, 1258-59 (10th Cir.), cert.

denied, 117 S. Ct. 443 (1996), overruled in part on other grounds, Holland, 116

F.3d at 1359 n.4; United States v. McDonald, 933 F.2d 1519, 1526 (10th Cir.

1991). The jury also expressly found that defendant used or carried the firearm

“during and in relation to a drug trafficking offense.” Finally, as the only

evidence linking defendant to the firearm was evidence that it was in the vehicle

he was driving, the jury’s verdict necessarily encompassed a finding that he

transported the weapon. See United States v. Durham, 139 F.3d 1325, 1335 (10th

Cir. 1998) (holding, when semi-automatic pistol found between driver’s and

passenger’s seats of truck stopped for speeding, jury’s finding that driver

possessed weapon at time of traffic stop necessarily encompassed a finding that

he transported weapon to that location). This is especially so in light of




                                          -5-
defendant’s uncontradicted testimony that he removed the gun from the trunk and

placed it in his car before driving home from the party. See Tr. at 67, 94-95.

      Defendant argues, however, that the Holland analysis should not apply

because the jury was not instructed as to the necessary elements of a “carry”

violation. This is incorrect for several reasons. On very similar facts in Durham,

139 F.3d at 1335, we held the failure to administer a complete instruction with

regard to the “carry” prong did not require reversal so long as the Holland

requirements were satisfied. Further, as the definition of “carry” remained the

same after Bailey was decided, defendant has not shown cause for failing to

challenge the incomplete definition in his direct appeal. See, e.g., United States

v. May, No. 97-1063, 1998 WL 380540, at *2 (10th Cir. June 30, 1998) (holding

defendant’s failure to challenge incomplete definition of “carry” on direct appeal

precluded consideration of issue in § 2255 motion). Lastly, we are not convinced

that a failure to define the term “carry” is error. See United States v. Rhodenizer,

106 F.3d 222, 225 (8th Cir. 1997) (holding failure to define “carry” not error);

United States v. Salazar, No. 97-4124, 1998 WL 339456, at *2 (10th Cir. June 10,

1998) (holding failure to define “carry” in instructions not error as term familiar

to one of ordinary intelligence); United States v. Arias-Santos, No. 96-1490, 1997

WL 452254, at **4 (10th Cir. Aug. 8, 1997) (same).




                                         -6-
      Defendant has moved this court for an appointment of counsel. Because

the issues before us are not complex, defendant competently presented his

arguments, and there is little likelihood he would succeed even with counsel, we

deny his motion. See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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