                         United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 96-3056
                                    ___________

Juan Torres Velasquez,                   *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
United States of America,                *
                                         *    [TO BE PUBLISHED]
      Defendant - Appellee.              *
                                    ___________

                                  Submitted: October 22, 1997
                                      Filed: December 19, 1997
                                    ___________

Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.
                            ___________

PER CURIAM.

       In April 1993, Juan Torres Velasquez was convicted of drug trafficking offenses
and of violating 18 U.S.C. § 924(c)(1) by using or carrying a firearm during and in
relation to those offenses. At trial, Velasquez did not object to a jury instruction
defining “use” of a firearm contrary to the Supreme Court’s later decision in Bailey v.
United States, 116 S. Ct. 501 (1995). On direct appeal, we rejected Velasquez’s
contention that the evidence was insufficient to convict him of the § 924(c)(1) offense.
See United States v. Quintanilla, 25 F.3d 694, 700 (8th Cir.), cert. denied sub nom.
Velasquez v. United States, 115 S. Ct. 457 (1994).
        Velasquez filed this petition for relief under 28 U.S.C. § 2255, contending he is
entitled to a new trial on the § 924(c)(1) count because the jury instruction was plain
error under Bailey. The district court1 denied relief, holding that the evidence at trial
was sufficient for the jury to find Velasquez guilty of carrying the firearm during and
in relation to his drug trafficking crimes. Velasquez appealed, and we granted a
certificate of appealability.2

       Our recent decision in Williams v. United States, 98 F.3d 1052 (8th Cir. 1996),
confirms that the district court correctly decided this issue. Velasquez seeks post-
conviction relief on an instruction issue that he procedurally defaulted at trial and on
direct appeal. As we explained in Williams, 98 F.3d at 1054:

      To obtain post-conviction relief for an erroneous jury instruction to which
      no contemporaneous objection was made, Williams must show cause
      excusing his procedural default and “actual prejudice” resulting from the
      alleged error. [United States v.] Frady, 456 U.S. [152,] 168 [1982]. The
      actual prejudice standard is more rigorous than the showing required to
      establish plain error on direct appeal. To establish such prejudice,
      Williams must show that an erroneous jury instruction “worked to his
      actual and substantial disadvantage, infecting his entire trial with error of
      constitutional dimensions.” 456 U.S. at 170.




      1
       The HONORABLE PAUL A. MAGNUSON, Chief Judge of the United
States District Court for the District of Minnesota.
      2
       We granted the certificate before a divided panel held that this is a federal
statutory claim for which a certificate may not issue under 28 U.S.C. § 2253(c)(2).
Hohn v. United States, 99 F.3d 892 (8th Cir. 1996); accord United States v. Apker, 101
F.3d 75 (8th Cir. 1996). The Supreme Court recently cast doubt on these rulings by its
limited grant of certiorari in Hohn v. United States, No. 96-8986, 1997 WL 275953,
66 U.S.L.W. 3314 (U.S. Nov. 4, 1997). We assume for purposes of a prompt
disposition of this appeal that the certificate of appealability was properly granted.

                                          -2-
Like the petitioner in Williams, Velasquez cannot meet this rigorous standard because
the evidence at trial was sufficient to convict him of “carrying” the firearm, and
therefore he cannot make the requisite showing of a “‘substantial likelihood’ that a
properly instructed jury would have acquitted him of violating § 924(c)(1).” Williams,
98 F.3d at 1055, quoting Frady, 456 U.S. at 172. The evidence at trial showed that
Velasquez negotiated with a cooperating informant to sell a large quantity of marijuana
at his residence, and police then obtained a warrant to search the residence. In
executing the warrant, the officers found ninety-one pounds of marijuana packaged for
distribution and a firearm in or on the living room sofa. Velasquez admitted that he
threw the gun on the sofa when he heard police approaching. We agree with the
district court that this evidence was more than sufficient to convict Velasquez of
carrying the weapon during and in relation to his drug trafficking crimes. See United
States v. White, 81 F.3d 80, 83 (8th Cir. 1996).

      The order denying Velasquez’s petition for § 2255 relief is affirmed.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -3-
