                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 18, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-30920
                         Summary Calendar


                      EUGENIO BALDERAS, JR.,

                                               Petitioner-Appellant,

                              versus


                            J.P. YOUNG,

                                               Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 2:04-CV-1461
                       --------------------

Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Eugenio Balderas, Jr., appeals the district court’s dismissal

of his 28 U.S.C. § 2241 habeas corpus petition for failure to

satisfy the requirements of the savings clause of 28 U.S.C. § 2255.

He seeks to challenge his conviction for using or carrying a

firearm during and in relation to a crime of violence, pursuant to

18 U.S.C. § 924(c), on the ground that it cannot be sustained

following Bailey v. United States, 516 U.S. 137 (1995), which

decision issued after his direct appeal and first § 2255 motion.


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     The district court correctly determined that Balderas had not

made the required showing that the Bailey decision rendered him

actually innocent so as to satisfy the savings clause of

§ 2255 and qualify for relief under § 2241.            See Christopher v

Miles, 342 F.3d 378, 382 (5th Cir. 2003); Reyes-Requena v. United

States, 243 F.3d 893, 904 (5th Cir. 2001).       Balderas asserts that

there is no evidence that he actively employed the firearm at issue

in this case and that his conviction therefore cannot stand post-

Bailey.   Section 924 is two-pronged, however, and the summary of

the trial evidence, which showed that Balderas delivered the murder

weapon to his coconspirator to shoot the intended victim in a

murder-for-hire   scheme,   was    sufficient   to    support   Balderas’s

conviction under the “carry” prong of § 924(c).         See United States

v. Schmalzried, 152 F.3d 354, 356-57 (5th Cir. 1998); see also

United States v. Rivas, 85 F.3d 193, 195 (5th Cir. 1996).

     Balderas   complains   that   the   Government    did   not   present,

and the district court did not refer to, the original trial

transcript, and he urges that it was error to rely on this court’s

summary of the trial evidence on direct appeal, since the direct

appeal predated Bailey.     However, Balderas does not challenge the

accuracy of the summary of the evidence.         Instead, he complains

that there is no evidence specifying the exact time and place he

gave the gun to Cabello and baldly asserts that the fact that he

delivered the gun to Cabello was no more than speculation.

     Specific testimony regarding the time and place that Balderas

                                    2
actually transferred the gun to Cabello to kill Garcia was not

necessary.   See Schmalzreid, 152 F.3d at 356-57.      To the extent

that Balderas argues that his “passive possession” of the gun was

insufficient to support his conviction under the “carry” prong, he

is incorrect.   See Schmalzried, 152 F.3d at 356-57.

     Balderas’s contention that the district court’s jury charge

was erroneous because it did not specifically define “use” or

“carry” is without merit.   See United States v. Logan, 135 F.3d

353, 356 (5th Cir. 1998).     His challenge to the trial court’s

failure to instruct the jury that its verdict must be unanimous was

raised and rejected on direct appeal and is barred by the doctrine

of res judicata.   See United States v. Razo-Leora, 961 F.2d 1140,

1143 (5th Cir. 1992).   Balderas’s new argument that the district

court erroneously instructed the jury that it could find him guilty

if he had used or carried “a firearm during or in relation to” a

crime of violence will not be addressed as it is raised for the

first time in his reply brief.       See United States v. Prince,

868 F.2d 1379, 1386 (5th Cir. 1989).

     The district court’s judgment is AFFIRMED.




                                 3
