                                  ____________

                                   No. 95-3446
                                  ____________


United States of America,              *
                                       *
                   Appellee,           *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri
Marc D. Rehkop,                        *
                                       *
                   Appellant.          *

                                  ____________

                     Submitted:    March 15, 1996

                         Filed:     September 18, 1996
                                  ____________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


      Marc D. Rehkop appeals from a final judgment entered in the United
States District Court1 for the Western District of Missouri upon a jury
verdict finding him guilty of one count of possession of methamphetamine
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and one
count of use of a firearm during and in relation to the offense of
possession with intent to distribute methamphetamine, in violation of 18
U.S.C. § 924(c).   The district court sentenced Rehkop under the federal
sentencing guidelines to 248 months imprisonment, five years supervised
release and a special assessment of $100.00.     For reversal, Rehkop argues
the district court erred in (1) denying his motion to suppress evidence
seized from his vehicle and (2) improperly instructing the jury on




     1
     The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
the law applicable to 18 U.S.C. § 924(c).    For the reasons discussed below,
we affirm in part, reverse in part, and remand the case to the district
court for further proceedings consistent with this opinion.


                                I.   Background


      The underlying facts are not in dispute.        On August 8, 1994, at
approximately 1:30 a.m., Officer Kelly Roth of the Springfield, Missouri,
Police Department was on a duty as a uniformed patrol officer in a marked
police car.   Officer Roth observed a vehicle at rest in an inside driving
lane at the corner of Kansas Expressway and Kearney Street in Springfield.
After observing the vehicle remain stationary through three cycles of an
electric traffic light, Officer Roth approached the vehicle, directed his
spotlight into the passenger’s side window, and observed Rehkop asleep at
the wheel.    The spotlight awoke Rehkop.     Rehkop looked at Roth, became
startled, looked down at the seat, and drove off through a red light.


      Officer Roth followed the vehicle after it ran the red light and
contacted a dispatcher with the message that he was following a possible
DWI and requested assistance.    He then followed the vehicle southbound on
Kansas Expressway and observed it swerving within its own lane four times.
Having observed Rehkop sleep through several cycles of the traffic light,
run a red light, and swerve within his lane, Officer Roth believed that
Rehkop was driving while intoxicated.    He activated his red lights to stop
the vehicle, and Rehkop complied by pulling over into the parking lot of
a nearby convenience store.     Officer Roth followed and parked his vehicle
so as to block Rehkop’s automobile.


      Officer Roth testified that after Rehkop stopped he observed Rehkop
make a motion in which his head and shoulders bowed forward and downward.
At the time, Roth thought Rehkop was hiding an




                                      -2-
alcoholic beverage and instructed him to remain in the car.       Roth then
asked to see Rehkop’s driver’s license.    When Rehkop replied that he did
not have one, Roth asked Rehkop to exit his vehicle, and Rehkop complied.
At that point, Roth conducted a frisk for weapons and asked Rehkop if he
had any weapons on him.   Rehkop responded that   he did not but that there
was an unloaded weapon on the back seat of the car.       Officer Roth then
handcuffed Rehkop, and another police officer, Officer Pulliam, arrived to
assist.   While Pulliam watched Rehkop, Roth looked into the passenger side
of the vehicle at the back seat and observed a .45 caliber handgun laying
on the floorboard behind the passenger’s seat.     When Roth picked up the
firearm, it was in the “cocked and locked position,” meaning that       the
hammer was back and the thumb safety was in position.   Although the firearm
did not contain a magazine, Officer Roth observed a bullet in the chamber
of the pistol.


      Officer Roth also testified that Rehkop appeared lethargic and unable
to focus his attention.   There was no odor of alcoholic beverages.   Roth,
however, believed Rehkop was under the influence of a narcotic, because
Rehkop’s eyes were bloodshot and glassy and he appeared to have a delayed
reaction to the statements made to him.


      After finding the firearm, Officer Roth informed Rehkop that he was
under arrest for suspicion of driving while intoxicated and for unlawful
use of a weapon.     Officer Roth advised him of his Miranda rights, and
Rehkop replied that he understood these rights.   After placing Rehkop under
arrest, Roth decided that the vehicle Rehkop had been operating would have
to be subjected to a custody tow and impounded pursuant to Springfield’s
Manual of Administrative Policy.   The manual provides that, when a person
is arrested and the vehicle is neither on the owner’s property nor in the
custody of the owner, a custody tow will be ordered.    Roth testified that
he believed that the manual required a vehicle subjected to a custody tow
to be searched and inventoried.




                                    -3-
      During      the    inventory    search,      Officer    Roth    found     .45    caliber
ammunition and a sealed box.             The sealed box was in the back seat on the
driver’s side.     Roth opened the box and discovered several nested plastic
bags and felt something soft and warm.             He then emptied the contents of the
bag on the ground and discovered            a gallon freezer bag which contained a
soggy, tan substance.       Roth asked Rehkop if he thought this bag weighed a
pound; Rehkop looked up and replied, “No, five.”                      At that point, Roth
resumed his search of the box and found additional gallon bags, which he
seized because he suspected them to contain contraband.                      He also found a
nylon pouch in the front seat of the car which contained three extra clips
of ammunition.      After finding the items in the box, Roth placed Rehkop
under arrest for possession of narcotics.


      Officer Roth also issued three traffic violation tickets to Rehkop,
for careless and imprudent driving, failing to have a driver’s license, and
driving while intoxicated.           Roth testified that he did not have Rehkop’s
consent to search the vehicle and that he had no reason to believe that
there were drugs in the vehicle when he began the inventory.                           Another
police officer who assisted in the inventory search discovered a .45
caliber magazine under the driver’s seat.


      A subsequent analysis of the soggy, tan substance found in Rehkop’s
car   revealed     that     the   substance        was   ninety-two     percent       pure    d-
methamphetamine.        The weight of the materials, exclusive of the packaging,
was 1,819.67 grams or 4.01 pounds.              Moreover, a special agent for the DEA
testified that the value of the methamphetamine would be $108,000 if sold
by pounds, $345,000 if sold by ounces, and $600,000 if sold by grams.                        The
special   agent    testified      that    the    quantity    seized    was    therefore      not
consistent with personal use.


      On August 10, 1994, a federal grand jury returned a two-count
indictment in the United States District Court in Springfield,




                                             -4-
Missouri, charging Rehkop with (1) possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (2) use of a
firearm during and in relation to a drug trafficking offense in violation
of 18 U.S.C. § 924(c).


      On April 14, 1995, Rehkop moved to suppress all the evidence seized
from his vehicle on the ground that there was no probable cause to support
the warrantless search in violation of the Fourth Amendment.       After a
hearing held on May 10, 1995, the district court issued oral findings and
denied the motion to suppress.2


      After evidence was submitted to the jury on May 11, 1995, the
district court instructed the jury on the law of the case.   In instructing
the jury, the district court refused Rehkop’s proposed instruction on Count
II for the alleged violation of 18 U.S.C. § 924(c).3     Over the specific
objection of Rehkop, the district




     2
      On May 11, 1995, during the jury trial of the present case,
Rehkop objected to the admission of evidence on the ground set
forth in his motion to suppress.    The district court overruled
Rehkop’s objection.
     3
     The instruction tendered by Rehkop, which the district court
refused to give, provided as follows:

                  In order to prove the Defendant
            guilty beyond a reasonable doubt of the
            crime charged in Count II of the
            indictment, the government must prove
            more than mere possession of a firearm.
            Rather, there must be some relation or
            connection between the firearm and the
            underlying crime of possession of
            methamphetamine    with    intent    to
            distribute.

                                    -5-
court gave jury instruction number 17 as to Count II.4   The jury returned
guilty verdicts as to both counts of the indictment.


      On September 20, 1995, following a sentencing hearing, the district
court sentenced Rehkop under the federal sentencing guidelines to
248 months imprisonment, five years supervised release and a
special assessment of $100.00.      This appeal followed.


                            II.   Discussion


      For reversal, Rehkop first argues the district court erred in
denying his motion to suppress evidence seized from his vehicle



     4
      Jury Instruction Number 17 provided:

                  The crime of using a firearm
            during   and   in   relation  to   drug
            trafficking, as charged in Count Two of
            the indictment, has two essential
            elements, which are:

                 One, the defendant committed the
            crime of possession with intent to
            distribute methamphetamine; and,

                  Two, during and in relation to the
            commission of that crime, the defendant
            knowingly used a firearm.

                  The phrase “used a firearm” means
            having a firearm available to aid in the
            commission of the crime of possession
            with      intent     to     distribute
            methamphetamine.

                  For you to find the defendant
            guilty of the crime charged under Count
            Two, the government must prove all of
            these essential elements beyond a
            reasonable doubt; otherwise, you must
            find the defendant not guilty of this
            crime.

                                   -6-
because the warrantless search violated the Fourth Amendment.
Specifically, Rehkop contends that Officer Roth lacked probable
cause to make the initial traffic stop of the vehicle and that the
stop was merely pretextual.   Rehkop recognizes that a traffic




                                -7-
violation, no matter how minor, creates probable cause to stop the
driver of a vehicle.      United States v. Barahona, 990 F.2d 412, 416
(8th Cir. 1993) (Barahona) (citing United States v. Cummins, 920
F.2d 498, 500 (8th Cir. 1990), cert. denied, 502 U.S. 962 (1991)).
He argues, however, that weaving within one’s lane of traffic does
not constitute a traffic violation.             Rehkop therefore maintains
that because he was not lawfully in custody at the time of the
inventory search of his automobile, the district court should have
suppressed the evidence seized from his vehicle.


     The Supreme Court has recently clarified that the historical
facts supporting probable cause are reviewed for clear error, while
the determination of probable cause is subject to de novo review.
Ornelas   v.   United    States,    116    S.   Ct.     1657,   1662-63    (1996)
(determination    of    whether    probable     cause    existed   for    search,
requiring application of facts to law, is mixed question of law and
fact and should be reviewed de novo).              The Supreme Court stated
that, in determining whether probable cause existed, “a reviewing
court should . . . give due weight to inferences drawn from those
[historical] facts by resident judges and local law enforcement
officers.”     Id. at 1663.


     In the present case, the district court found that Rehkop had
remained stationary through three rotations of traffic lights and
had then weaved within his own lane four times.                    I Trans. 63.
Although the district court did not address whether or not Rehkop
had driven through a red light, we note that Rehkop concedes this
fact in his brief and that the record supports such a finding.                See
Brief for Appellant at 8; I Trans. 6.           The district court concluded
that Officer     Roth    had   probable    cause   to    stop   Rehkop    because
(1) Rehkop appeared to be under the influence of an intoxicating
substance and (2) Rehkop’s driving posed a hazard to the public.
See I Trans. 63.       In addition, the district court determined that

                                     -8-
Officer Roth had acted properly in impounding the vehicle, because
Roth, who had no driver’s license and who appeared to be under the




                               -9-
influence of narcotics, could not have lawfully driven away from
the scene.


     Upon de novo review, giving due weight to the district court’s
historical findings and inferences, we agree that Officer Roth had
probable cause to stop Rehkop, based upon the traffic violations
committed by Rehkop5 and Roth’s reasonable belief that Rehkop was
driving while intoxicated.          See Barahona, 990 F.2d at 416; see also
United States v. Richards, 967 F.2d 1189, 1192 (8th Cir. 1992)
(stop of defendant for traffic violation was not pretextual so as
to render ensuing search of defendant’s vehicle unconstitutional,
where police officer testified that he had observed defendant’s
vehicle make a swerving lane change and drift momentarily off the
road).       We also conclude that Officer Roth properly impounded
Rehkop’s vehicle, in light of the fact that Rehkop had no driver’s
license and appeared to be under the influence of narcotics.


     We also uphold the search of Rehkop’s automobile as a valid
inventory search.        It is well-settled that a police officer, after
lawfully taking custody of an automobile, may conduct a warrantless
inventory search of the property to secure and protect vehicles and
their contents within police custody.              Colorado v. Bertine, 479
U.S. 367, 372 (1987); Illinois v. Lafayette, 462 U.S. 640, 646
(1983).       In   the    present    case,    Officer   Roth   discovered   the
methamphetamine in Rehkop’s vehicle while conducting a lawful
inventory search of the vehicle.              Therefore, we hold that the
district court did not err in denying Rehkop’s motion to suppress.




         5
       Although, as noted above, there is ample evidence in the
record to support a finding that Rehkop drove through a red light,
Officer Roth would have had probable cause to stop him even in the
absence of this fact.

                                       -10-
     Rehkop next argues that the district court erred in refusing
to instruct the jury that, in order to convict Rehkop under 18
U.S.C. § 924(c), the government would have to prove more than mere




                              -11-
possession of a firearm.     The district judge informed the jury that
a defendant “uses a firearm” whenever he has “a firearm available
to aid in the commission of . . . [a drug trafficking offense].”
Jury Instruction No. 17; Appellee’s Add. at 9.            In light of the
Supreme Court’s supervening decision in Bailey v. United States,
116 S. Ct. 501, 505-08 (1995) (Bailey), we hold that the district
court committed error.    In Bailey, the Supreme Court held that the
term “use” in 18 U.S.C. § 924(c)(1)6 “requires evidence sufficient
to show an active employment of the firearm by the defendant, a use
that makes the firearm an operative factor in relation to the
predicate offense.”      116 S. Ct. at 505.      The Court specifically
determined that the mere storage of a weapon near drugs or drug
proceeds does not constitute active use.          Id. at 508.        In the
present case, the district court’s § 924(c) instruction did not set
forth the   standard   for   “use”   now   required   under   Bailey.      The
instruction,   therefore,    now   constitutes   error.       See   U.S.    v.
Webster, 84 F.3d 1056, 1067 (8th Cir. 1996) (“in deciding whether
an error is clear under current law, the proper focus is the law
applicable on appeal rather than at trial").      Moreover, because the
indictment only charged Rehkop under the "use" prong of § 924(c),
and not under the "carry" prong, the government has conceded in its
brief and at oral argument that Rehkop's § 924(c) conviction should
be vacated and remanded.       We therefore hold that the district
court's instructional error “affected the outcome of the district
court proceedings.”      United States v. Olano, 507 U.S. 725, 734
(1993).   Accordingly, we reverse the § 924(c) conviction under




     6
      18 U.S.C. § 924(c)(1) requires the imposition of specified
penalties if the defendant “during and in relation to any crime of
violence or drug trafficking crime . . . uses or carries a
firearm.”

                                   -12-
Count II, vacate the sentence, and remand the case to the district
court.7




      7
       We note that the government may, but need not, seek a new
trial on this count.

                              -13-
      The government requests that we also vacate the sentence as
to   Count    I,    possession     of    methamphetamine        with    intent   to
distribute, in violation of 21 U.S.C. § 841(a)(1).                The government
correctly observes that a reversal of Rehkop’s § 924(c) conviction
may render appropriate a two-level enhancement under § 2D1.1(b)(1)
of the federal sentencing guidelines.              Section 2D1.1(b)(1) provides
that it is a specific offense characteristic “[i]f a dangerous
weapon (including a firearm) was possessed,” warranting a two-level
sentence increase.       U.S.S.G. § 2D1.1(b)(1).


      The district court did not consider § 2D1.1(b)(1) because
Rehkop’s     conviction    on    the     §     924(c)   charge    precluded      the
application    of    a   two-level      enhancement     under    §     2D1.1(b)(1).
See U.S.S.G. 2K2.4, comment. (backg’d.) (in order to avoid double
counting, when a sentence is imposed under 18 U.S.C. § 924(c) in
conjunction with a sentence for an underlying offense, any specific
offense characteristic for explosive or firearm discharge, use, or
possession is not applicable).           Because we have vacated Rehkop’s
§ 924(c) conviction, however, “this double counting concern is
eliminated and it is appropriate to remand to the district court to
allow it to resentence” Rehkop.              United States v. Thomas, 1996 WL
471336, at *8 (8th Cir. Aug. 21, 1996) (citing United States v.
Roulette, 75 F.3d 418, 426 (8th Cir. 1996)).              Therefore, we vacate
Rehkop’s sentence under Count I to provide the district court an
opportunity    to   consider     whether       a   sentence   enhancement     under
U.S.S.G. § 2D1.1(b)(1) is warranted.


                                III.    Conclusion


      For the foregoing reasons, we hold that the district court
properly denied Rehkop’s motion to suppress evidence seized from
his vehicle but erred in giving the jury instruction on 18 U.S.C.


                                        -14-
§ 924(c).   Accordingly, we affirm Rehkop’s § 841(a)(1) conviction,
reverse his § 924(c) conviction, vacate his sentence, and remand




                                -15-
the case to the district court for further proceedings consistent
with this opinion.


     A true copy.

          Attest:

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




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