                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 16 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellant,

    v.                                                    No. 98-4151
                                                    (D.C. No. 96-CV-795-K)
    ROY SPENCER HARMON,                                    (D. Utah)

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , 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)(2); 10th Cir. R. 34.1(G). 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      This order and judgment is not binding precedent, except under the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.
       The United States appeals the district court’s order granting defendant Roy

Spencer Harmon relief on his motion filed under 28 U.S.C. § 2255. The district

court vacated defendant’s conviction under 18 U.S.C. § 924(c)(1) for using or

carrying a firearm during and in relation to the commission of a drug trafficking

crime and granted him a new trial. The district court also ordered that

defendant’s base offense level be reduced from fourteen to twelve and that his

claims of ineffective assistance of counsel and perjured testimony be denied; the

government does not challenge those rulings. Our jurisdiction arises from

28 U.S.C. § 1291. We reverse and remand with directions to reinstate the

conviction under § 924(c)(1).      1



       Defendant was arrested as he got out of his automobile. He was wearing a

fanny pack which contained 125 doses of LSD, cash, and a .25 caliber automatic

pistol. As noted above, he was convicted of violating § 924(c)(1). His conviction

was affirmed on appeal.     See United States v. Harmon , 996 F.2d 256, 257 (10th

Cir. 1993). In that appeal, defendant alleged that the jury instructions erroneously

defined “in relation to” as used in the charge of using or carrying a firearm during

and in relation to a drug crime.       See id. He did not challenge the instructions for

“using or carrying.” Subsequently, the Supreme Court decided           Bailey v. United



1
      A certificate of appealability is not required from the United States.      See
United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998).

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States , 516 U.S. 137 (1995), interpreting the “use” prong of § 924(c), defining it

more narrowly than lower courts had previously defined it, and holding that “the

government must prove active employment of the firearm during and in relation to

the predicate crime.”   United States v. Powell , 159 F.3d 500, 501 (10th Cir.

1998), cert. denied , 119 S. Ct. 1088 (1999).

       Defendant then filed this § 2255 petition in which he challenged his “use

and/or carry” conviction. The district court adopted the magistrate judge’s

findings that the facts did not support a “use” conviction after       Bailey and the jury

instructions given at defendant’s trial did not require the jury to make the findings

necessary to sustain the conviction under the “carry” prong. The district court

evaluated defendant’s case under     United States v. Holland , 116 F.3d 1353 (10th

Cir.), cert. denied , 118 S. Ct. 253 (1997), and considered the evidence and the

instructions given to determine whether the jury’s verdict was the functional

equivalent of a guilty verdict on a “carry” violation. The         Holland analysis

employed by the district court, however, was “supplanted by the holding in

Bousley v. United States , 523 U.S. 614, 118 S. Ct. 1604 . . . (1998), that collateral

Bailey claims require actual innocence of the § 924(c) charge before relief may be

granted.” United States v. Leopard , 170 F.3d 1013, 1016 (10th Cir. 1999).

       Because defendant did not challenge the “use and carry” instructions in his

direct criminal appeal, his claims based on those instructions are procedurally


                                             -3-
barred. See Bousley , 118 S. Ct. at 1610.   2
                                                Accordingly, to overcome the

procedural bar, he must show “cause and prejudice” or “actual innocence.”          See

id. at 1611. Defendant’s argument that the legal basis for his claim was not

available at the time of his trial and direct appeal so it would have been futile to

attack his conviction before   Bailey , does not establish cause for the default

without exceptional novelty not present here.       See id. Therefore, to obtain

collateral review of his § 924(c) claim, defendant must show his actual innocence

of the charge.

       To establish his actual innocence, defendant “must demonstrate that, in

light of all of the evidence, it is more likely than not that no reasonable juror

would have convicted him.”      Id. (quotations omitted). A “carrying” conviction

requires that there was a drug trafficking crime, the firearm was “carried,” and the

“carrying” was during and in relation to any drug trafficking.      See 18 U.S.C.

§ 924(c)(1). Here, plaintiff admitted that he had a gun and drugs in his fanny

pack as he drove his car and as he walked away from it. Consequently, this

admission is sufficient to support a conviction under the “carry” prong of



2
      The government raised procedural bar for the first time on appeal. Even if
the government had not done so, this court has the authority to do so sua sponte,
see United States v. Allen , 16 F.3d 377, 378-79 (10th Cir. 1994), so long as
defendant has an opportunity to respond to the defense, see United States v.
Warner , 23 F.3d 287, 291 (10th Cir. 1994). Here, defendant’s answer brief on
appeal provided him an opportunity to respond to the procedural bar defense.

                                            -4-
§ 924(c). See Muscarello v. United States , 524 U.S. 125, 118 S. Ct. 1911, 1914,

1919 (1998) (holding conviction under “carry” prong satisfied where gun was in

trunk or locked glove compartment of automobile). Defendant cannot

demonstrate that he is actually innocent of the § 924(c) violation. Therefore, we

may not address the merits of his   Bailey claim because the claim is procedurally

barred. See, e.g. , Powell , 159 F.3d at 504.

      Defendant’s motion to bar the government’s appeal is DENIED. The

judgment of the district court vacating defendant’s conviction under 18 U.S.C.

§ 924(c)(1) is REVERSED and this case is REMANDED with directions to

reinstate the conviction. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




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