UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 95-5679

GREGORY VONZELL COMER,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-95-69)

Submitted: February 28, 1997

Decided: July 30, 1997

Before HALL, ERVIN, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Scott P. Mebane, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Gregory Vonzell Comer appeals his convictions after jury trial for
armed bank robbery and carrying a firearm during a crime of vio-
lence. 18 U.S.C. §§ 2113(d), 924(c)(1) (1994). He alleges on appeal
that the district court erred by denying his motions for acquittal under
Fed. R. Crim. P. 29 and that the district court gave an erroneous jury
instruction regarding "use" of a firearm under 18 U.S.C. § 924(c)(1).
For the following reasons, we affirm the convictions.

Comer pled guilty to bank robbery under 18 U.S.C.§ 2113(a)
(1994). At trial, his counsel attempted to cast doubt on whether
Comer actually used a gun to obtain money from the bank. The evi-
dence at trial, however, was uncontroverted that Comer presented a
bank teller with a bag, opened his coat, showed the teller a pistol in
his belt and told the teller "this is for real, put the money in there."
While the teller complied, Comer stated that "if you put a dye pack
in there [the bag], I'm going to blow your head off." As Comer exited
the bank doors, he pulled his gun out of his belt. With respect to the
§ 924(c)(1) charge, the court instructed the jury that:

          the Government must prove beyond a reasonable doubt that
          during and in relation to the bank robbery he [Comer] either
          carried or used a firearm. A person is considered to have
          carried a firearm if he has it in his actual possession during
          the course of a bank robbery. A person is considered to have
          used a firearm if its presence in his possession facilitated in
          any manner a bank robbery. In determining whether a fire-
          arm facilitated and had a relation to a bank robbery offense,
          it is not necessary to find that the firearm was fired. A fire-
          arm can facilitate and relate to a bank robbery if the person
          possessing the firearm intended to use the gun to frighten
          bank personnel into complying with his demands or to give

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          himself courage during the course of the robbery or to make
          an escape possible.

In reviewing a denial of a motion for acquittal, we must affirm the
denial if considering the evidence and all reasonable inferences that
can be drawn from it in the light most favorable to the Government,
any rational fact finder could have found the essential elements of the
crime beyond a reasonable doubt. See United States v. Sloley, 19 F.3d
149, 152 (4th Cir. 1994). Based upon the uncontroverted facts pres-
ented at trial, we find that any rational fact finder could have found
that Comer used a gun to effect his robbery and that this contested
element was proved beyond a reasonable doubt for both counts. Id.;
18 U.S.C. §§ 2113(d), 924(c)(1).

In addition, we find sufficient evidence supports Comer's 18
U.S.C. § 924(c) conviction under either the"use" or "carry" prong of
the statute, notwithstanding Bailey v. United States, ___ U.S. ___, 64
U.S.L.W. 4039, 4041-42 (U.S. Dec. 6, 1995) (No. 94-7448, 94-7492).
However, because the § 924(c)(1) jury instruction was erroneous as
to the "use" element, see United States v. Hayden, 85 F.3d 153, 161
(4th Cir. 1996) (after Bailey "use" under § 924(c)(1) requires more
than mere possession or intended use; it requires actual use--
brandishing, displaying, bartering, striking with or firing or attempt-
ing to fire), "we must set aside the defendant's conviction unless we
can say, beyond a reasonable doubt, that the jury actually made the
finding that inheres in the element." United States v. Hawthorne, 94
F.3d 118, 121 (4th Cir. 1996). Although the jury was erroneously
instructed with respect to the "use" prong, see Hayden, 85 F.3d at
161, the relationship between Comer and the pistol is such that the
jury had to make a finding that he used the firearm during the process
of the bank robbery, e.g. if the jury believed Comer had a gun it was
because they believed the testimony of the teller that Comer showed
his gun to the teller and threatened to "blow his head off" if he placed
a dye pack into his sack. Accordingly, we find beyond a reasonable
doubt, that the jury actually found all the elements of § 924(c)(1) as
these facts show both "use" and "carry" of a pistol in connection with
the bank robbery. See Hawthorne, 94 F.3d at 121; United States v.
Smith, 94 F.3d 122, 124 (4th Cir. 1996).

Thus, we affirm Comer's convictions. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented

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in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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